Reviewing convictions for importing lobster tails from Honduras in violation of Lacey Act which bans imports to U.S. in violation of "foreign laws," Eleventh Circuit rules, as matter of first impression, that where foreign government had affirmed validity of its laws during U.S. prosecutions under Act, its later change of position became immaterial
In early February 1999, the National Marine Fisheries Services (NMFS) received an anonymous facsimile stating that the cargo vessel "M/V Caribbean Clipper" would arrive in Bayou la Batre, Alabama, on February 5, 1999, with "undersized ... lobster tails ... a violation of Honduran law." The facsimile stated that Honduras bans the bulk export of lobsters, and requires the use of boxes. The Lacy Act bars U.S. imports of "fish or wildlife [that has been] taken, possessed, transported or sold in violation of ... any foreign law." 16 U.S.C. Section 3372(a)(2)(A).
NMFS's agents got in touch with the Direccion de Pesca y Acuicultura (DIGEPESCA) (the Honduran Department of Fisheries), asking whether the shipment violated Honduran law. In three separate letters, the fisheries department described Honduran fishing laws and confirmed that the shipment in question breached the Fishing Law, the Industrial and Hygienic Sanitary Inspection Regulation for Fish Products and Resolution No.030-95. The latter provision bars the harvesting and destroying of egg-bearing lobsters.
The department also sent along copies of the laws and offered to aid in any prosecutions under the Lacey Act. Shortly thereafter, NMFS seized the lobster shipment. During later meetings between NMFS special agents and Honduran government officials, the latter often declared that the harvesting and shipment of these lobster tails breaks Honduran law.
In September 2000, a grand jury indicted David Henson McNab, Abner Schoenwetter, Robert Blandford, and Diane Huang (defendants) for conspiracy, smuggling, money laundering, Lacey Act violations, and other offenses having to do with the illegal imports of Caribbean spiny lobsters from Honduras.
To determine the validity of the relevant Honduran laws, the district court conducted a pre-trial hearing on foreign law. There, Liliana Patricia Paz, the highest-ranking legal official in the office of the Secretary-General of the Honduran Ministry, testified about the Honduran laws. Based on her testimony, the district court held that the Honduran provisions were valid predicates for the Lacey Act charges.
The court convicted defendants and they appealed. The defendants argued on appeal, inter alia, that the Honduran wildlife protections at issue took the form of a "regulation" and a "resolution" and thus did not constitute "law" within the meaning of the Act. They also maintained that the applicable Honduran provisions were invalid. In a 2-to-1 vote, however, the U.S. Court of Appeals for the Eleventh Circuit affirms the convictions.
The Court first examines the phrase "any foreign law" in the Lacey Act. The Act declares that it applies to "laws ... which regulate the taking, possession, importation, exportation, transportation, or sale of fish or wildlife or plants." 16 U.S.C. Section 3371(d). This definition, however, does not specifically refer to regulations and other similar acts. On the other hand, limiting this definition to pure "laws" (meaning statutes) would thwart the purpose of the Act since measures to safeguard fish and wildlife take various legal forms in different legal systems. The Court decides that the disputed term does include foreign regulations and other legally binding provisions designed to protect wildlife.
The Court then turns to the defendants' argument that the Honduran protective measures were invalid. Oddly enough, the Embassy of Honduras filed an amicus brief in support of one of the defendants. "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. 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 free to follow the Honduran government's original position."
"... [W]e 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 ...' ..."
"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 does not make the defendants any less culpable for their actions. If the laws were valid in Honduras during the 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." [Slip op. 27-29]
The Court then addresses the effect of the puzzling turnabout by Honduras. "When ... 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 tasks of redetermining foreign law." [Slip op. 31]
Here, the Government had asked for, and gotten, the help of the Honduran Ministry during its investigation of the lobster imports. The Honduran government's later switch does not change the fact that during the prosecution of the Lacey Act violations, it treated the relevant provisions as valid.
Citation: United States v. McNab, 2003 WL 1419848 (11th Cir. March 21, 2003).
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