Shift by Foreign Government Does Not Affect Convictions
States v. McNab, et. al., 324 F.3d 1266 (11th Cir. 2003).
M. Long, 2L
Stephanie Showalter, J.D., M.S.E.L.
Eleventh Circuit recently decided an issue of first impression, whether
federal courts are bound by a foreign governments post-conviction
representations regarding the validity of its laws. This question arose
as a result of an amicus brief filed by the Honduran Embassy, which
contained representations about Honduran law directly conflicting with
the Honduran governments original pre-trial representations.
In February 1999, NOAA Fisheries received an anonymous tip that a shipment
arriving in Alabama contained undersized lobster tails in violation
of Honduran law. After receiving official confirmation from Honduran
officials that the ship had illegally harvested the lobsters, federal
agents seized the ship and charged the defendants with violations of
the Lacey Act. The Lacey Act prohibits the importation of "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."
The defendants were convicted in federal court under the Lacey Act for
harvesting Caribbean spiny lobsters in violation of Honduran law. The
defendants filed post-trial motions arguing that the foreign laws which
served as the basis for the Lacey Act convictions were invalid. The
district court dismissed the motions and sentenced McNab and two co-defendants
to ninety-seven months imprisonment.
The defendants argued on appeal that the district court misinterpreted
Honduran law, claiming that the Honduran laws were invalid and void
at the time of the indictment and, therefore, could not serve as a basis
for the application of the Lacey Act. Specifically, the defendants argued
that: (1) the scope of the Lacey Act does not reach the Honduran regulations
under which they were convicted because they are not statutes; and (2)
the district court's interpretations of the law were erroneous.
The Lacey Act
The Eleventh Circuit first addressed whether the phrase any foreign
law in the Lacey Act applies to foreign regulations and other
legally binding provisions. The court determined that the language of
the Act was ambiguous, as definitions of the word law range
from a rule of conduct or action prescribed or formally recognized
as binding or enforced by a controlling authority to a statute.2
When the plain language of a statute is ambiguous, a court looks to
the legislative history to determine legislative intent.3
The Lacey Act was originally passed in 1900 to regulate interstate fish,
wildlife, and plant trade, and amended in 1935 to include foreign law.4 It was amended again in 1981 to expand its scope and enhance its
deterrence effects.5 The court concluded that
a narrow interpretation of the Act would prevent the wildlife
conservation laws of many countries from serving as the basis for the
Lacey Act violations and would limit the Acts utility.6 Therefore, regulations promulgated by foreign governments are included
within the scope of any foreign law.
Three Honduran laws served as the basis for the Lacey Act prosecutions.
Resolution 030-95 establishes a 5.5 inch size limit for lobsters, Regulation
0008-93 requires lobsters be inspected and processed in Honduras prior
to exportation, and Article 70(3) of the Fishing Law prohibits the harvesting
or destruction of lobster eggs. On appeal, the defendants raised the
argument that, between the time the boat was seized and the subsequent
conviction, Honduras repealed the regulations and laws under which the
defendants were charged and sentenced. The defendants claimed that because
the laws are no longer valid, the Lacey Act convictions were invalid.
Whether the defendants convictions are sustainable depends on
whether the Honduran laws relied on by the federal government were valid
during the time period covered by the indictment. The fact that those
laws may no longer be valid, does not affect the validity of the defendants
convictions. During the investigation, NOAA Fisheries made direct contact
with Honduran officials charged with regulating and enforcing the fishing
laws who provided evidence and verification that the laws were valid.
During a pretrial hearing held in September 2000, Honduran government
officials testified as to the validity of the laws and confirmed that
they were in effect and legally binding during the time period in question.
However, on appeal, the Honduran government maintained that the lobster
regulations were invalid at the time of the shipments, clearly contradicting
their position during the prosecution and trial.
The court noted that federal courts are not bound by declarations made
by foreign embassies about their laws. Rather, the statements submitted
to the court by the Honduran Embassy are simply evidence of what Honduran
law is, which must be viewed in light of all the other evidence. The
Eleventh Circuit held that the district court did not err in determining
that the laws were valid and legally binding. The district courts
and the government of the United States . . . have the right to rely
upon the Honduran governments original verifications of its laws.7
The Eleventh Circuit then reviewed the district courts findings
regarding the validity of the three Honduran fishing regulations. With
regard to Resolution 030-95, the defendants argued that it was never
legally binding because it had not been issued in accordance with Honduran
constitutional procedures, relying on an administrative law decision
issued in May 2001. The administrative law court held that the regulation
was not valid and was void. The Eleventh Circuit determined that although
Resolution 030-95 is no longer valid, there is no evidence supporting
the retroactive application of the administrative decision.
Regulation 0008-93 was promulgated in 1993 pursuant to Decree 40, which
was repealed by the Honduran government in 1995. Regulation 0008-93
was repealed in December 1999. The defendants argue that the repeal
of Decree 40 repealed all regulations promulgated under it and, therefore,
Regulation 0008-93 was not in effect at the time of the shipments. The
court disagreed, stating that there would have been no need for an accord
repealing the regulation in 1999 if it had been repealed in 1995.
Finally, Article 70(3) of the Fishing law prohibits the harvesting or
destruction of lobster eggs. The defendants argued that this regulation
does not prohibit the destruction of lobster eggs for profit. The court
quickly dismissed this argument, as there would appear to be no other
way to interpret Article 70(3) except to prohibit the destruction of
Justice Fay dissented from the majority arguing that the status of Resolution
030-95 was not settled within the Honduran legal system at the time
the defendants were indicted. Justice Fay argued that the Honduran courts
declaration of the Resolution as null and void should be controlling
under the Lacey Act. The Honduran court declaration came after the district
courts decision, but Justice Fay believes that it is vital to
the appellate courts determination, because Resolution 030-95
did not follow the legal code at the time it was issued,
because it was not properly issued by the President of Honduras or authorized
by the proper Secretary or Under Secretary of the State.8
Justice Fay reasoned that retroactive application of invalidated criminal
laws to previous convictions is frequently practiced in the United States
and should be applied in this situation.
Despite the dissenting arguments, the Court of Appeals for the Eleventh
Circuit affirmed the district courts decision to convict the defendants,
concluding that their actions fell within the scope of the Lacey Act
and that the Honduran laws were valid and legally binding during the
time period covered by the indictment.
1. 16 U.S.C. § 3372(a)(2)(A) (2003).
2. U.S. v. McNab, 324 F.3d 1266, 1274 (11th Cir. 2003).
3. Id. at 1273.
4. Id. at 1275.
5. U.S. v. 594,464 Pounds of Salmon, 871 F.2d 824, 828
(9th Cir. 1989).
6. McNab, at 1276.
7. Id. at 1279.
8. Id. at 1286.