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Position Shift by Foreign Government Does Not Affect Convictions

United States v. McNab, et. al., 324 F.3d 1266 (11th Cir. 2003).

Joseph M. Long, 2L
Stephanie Showalter, J.D., M.S.E.L.

The Eleventh Circuit recently decided an issue of first impression, whether federal courts are bound by a foreign government’s 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 government’s 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 Act’s utility.”6 Therefore, regulations promulgated by foreign governments are included within the scope of “any foreign law.”

Honduran Laws
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 government’s original verifications of its laws.”7

The Eleventh Circuit then reviewed the district court’s 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 the eggs.

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 court’s declaration of the Resolution as null and void should be controlling under the Lacey Act. The Honduran court declaration came after the district court’s decision, but Justice Fay believes that it is vital to the appellate court’s 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 court’s 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

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