*1 McNAB, D. Robert David Henson FAY, HULL, Before WILSON al., Blandford, Defendants- et Judges. Circuit Appellants. ORDERED: America,
United States petitions rehearing granted for Plaintiff-Appellee, deleting entirely footnote part by v. opinion was issued from Court’s Schoenwetter, D. Robert Abner will issue March 2003. The Court Blandford, Defendants- making that deletion. opinion substituted Appellants. the petitions The Court otherwise denies America, United States of McNab, of defendants’ Scho rehearing for Plaintiff-Appellee, enwetter, Embassy Huang, Blandford of Honduras.
v. McNab, Abner David Henson having re- of this Court No member al., Schoenwetter, De et suggestion for deny quested poll, fendants-Appellants. P. See rehearing R.App. banc. Fed. en 35(a); Circuit Rule 35-5. Eleventh and 02-11264. Nos. Appeals, United States Court FAY, Judge, Circuit dissents. Eleventh Circuit. May Wadsworth, Miguel A. Estra-
Jeffrey A. Crutcher, LLP,
da, Gibson, Wash- Dunn & Rose, DC, Alan Michael I. Martin
ington, Miami, FL, Keene Dennis B.
Feigenbaum, Maclean, Taturn, Hunter, Exley M.
John Savannah, GA, Dunn, P.C., J.P. Court-
& Sims, III, W. ney, Patrick H. William America, UNITED STATES Briskman, AL, Watts, Mobile, M. Donald Plaintiff-Appellee, Binion, Talmadge Hud- Victor Briskman & v. Watts, Mobile, AL, son, II, for Hudson & Defendants-Appellants. McNAB, Robert D. David Henson Blandford, al., et Defendants- Div., Aagaard, Environmental
Todd Appellants. Section, DC, for U.S. App. Washington, Smith, Lee, Anthony Mar- Tony S. John America, United States of Duston, tin, Lewis Gaynes, J. Robert Plaintiff-Appellee, P.C., Schmeltzer, Shepard, Aptaker & DC, Em- Washington, Amicus Curiae
bassy of Honduras. Schoenwetter, Robert D. Abner
Blandford, Defendants- Appellants. *2 America, United States of
Plaintiff-Appellee, McNab, Henson Abner
David al.,
Schoenwetter, De et
fendants-Appellants.
Nos. 02-10810 and 02-11264. Appeals,
United States Court of
Eleventh Circuit.
March May
As Amended
Jeffrey Wadsworth, A. Miguel A. Estra- da, Gibson, Crutcher, LLP, Dunn & Wash- DC, Rose, ington, Michael I. Martin Alan Miami, FL, Keene, Feigenbaum, Dennis B. Taturn, Hunter, Maclean, Exley John M. Dunn, P.C., Savannah, GA, & J.P. Court- III, Sims, ney Patrick H. William W. Mobile, Watts, AL, Briskman, Donald M. Binion, Talmadge Briskman Victor Hud- & son, II, Watts, Mobile, AL, Hudson & for Defendants-Appellants. Div., Aagaard,
Todd Environmental Section, DC, App. Washington, for U.S. Lee, Smith, Anthony S. Tony John Mar- Duston, Gaynes, tin Robert Lewis J. Schmeltzer, P.C., Aptaker Shepard, & Curiae, DC, Amicus Washingtomn, Embassy of Honduras. HULL, FAY, and
Before WILSON Judges. Circuit WILSON, Judge: Circuit hereby the follow- The Court substitutes opinion ing opinion place of which March was issued on McNab, postconviction directly and contra- Schoen Abner David Henson wetter, Blandford, original position Diane H. and vene D. Robert defendants) appeal courts relied and (collectively and our Huang they re sentences mat- jury question acted. This is a the convictions guilty found jury them impression ceived after first this Circuit ter of laundering, conspiracy, smuggling, money apparently other circuits as well. in connection Lacey Act violations below, set forth For the reasons sale, purchase of importation, and sen- the defendants’ convictions affirm Honduras. lobsters from spiny Caribbean tences. argument appeal main The defendants’ in determin that the court erred district BACKGROUND laws that served that the Honduran ing February agents of the Na- On of their convictions underlying basis (NMFS) Marine Fisheries Service tional The defen valid enforceable. were facsimile, which anonymous received an dants contend cargo transport provided McNab’s and, therefore, no invalid, there was CLIPPER, vessel, the CARIBBEAN *5 M/V upon which to base violation Batre, Bayou arrive in la Alabama would their convictions.1 5, 1999, February shipment with a challenge to the valid- The defendants’ oz) (3 containing “undersized & lobsters laws us to ity requires of the Honduran tails, a violation of [which was] lobster foreign law determi- undertake own our The further Honduran law.” facsimile complicated by con- nation. Our task is prohibits that the bulk provided Honduran flicting representations from exportation requires lobsters validity' of regarding officials packed export. in lobsters be boxes for Throughout the investi- Honduran laws. response anonymous tip, In to trial, officials of- gation and Honduran the Dirección agents NMFS consulted to support fered and assistance (DI- y de Aeuicultura General Pesca government, and both United States GEPESCA) regarding Honduras2 relied government and the district court shipment legality of referenced lobster upon the officials’ verification Honduran ques- NMFS agents in the facsimile. The Shortly after the of the Honduran laws. shipment whether violated the tioned convicted, the Honduran defendants were Act, it Lacey which makes unlawful position; its it cur- government reversed into the or wild- import United States “fish rently validity the laws refutes the taken, possessed, [that been] life has Therefore, must previously verified. transported, or ... sold violation of courts are bound decide whether our 3372(a)(2)(A). § foreign law.” 16 U.S.C. representa- new separate responding In three letters laws regarding tions of its inquiry, general issued director of the representations agents’ when new money prohibits importation ty, smuggling there could no or Lacey 1. The taken, possessed, transported, “fish or laundering wildlife violations. sold ... law.” in violation of 3372(a)(2)(A). § the lobsters 16 U.S.C. If agency is the within Hon- 2. The DIGEPESCA transported, imported, and sold in were not Agricultura y Ganadería duras’s Secretaria de could be no violation of Honduran there (SAG) responsible that is enforcement Accordingly, lob- if the violations. fishing of the and the execution of fish- le- brought sters into the States ing programs. gally proper- criminally-derived and were not described some Hondu- there was 5.5-inch DIGEPESCA size limit for fishing ras’s laws and confirmed that lobster that all tails and catches had to be shipment illegally been “ha[d] McNab’s reported to Honduran authorities. The transported violation the Fishing provided cop- officials certified Law, and Hygienic Sanitary the Industrial ies of in question. September the laws In Inspection Regulation for Fish Products agents of 1999 NMFS inspected the lob- No. and Resolution 030-95.” director shipment ster that had been seized earlier copies general provided authentic year. inspection confirmed that applicable laws and stated the DI- the seized packed lobsters were in bulk ready was all GEPESCA ef- plastic bags without being processed and prosecute per- forts revealed a significant number had a sons who violate the Act. tail length that was less than the 5.5 inches In March early agents of 1999 NMFS required by the Honduran size limit re- shipment seized the was lobster refer- addition; striction. many the lob- anonymous enced in the facsimile based sters were egg-bearing or had their eggs general’s the director assurances that removed. had exported lobsters been violation Over next few In March of 2000 two Honduran offi- months, agents NMFS communicated with cials, legal Despacho advisor in the Min- Honduran officials about advisor, isterial and a SAG traveled legality seized laws and the lobster government pros- Alabama to meet with shipment. special In June of 1999 NMFS investigators. ecutors and Both legal ad- *6 agents attorney an in the and provided visors written statements Atmospheric States Oceanic National and cited Resolution 030-95 as a law reg- valid Administration Office of the General Coun- ulating fishing industry. They the lobster sel met with various Honduran officials processing also described the require- Agricultura y from the de Ga- Secretaria by Regulation ments mandated 0008-93.4 (SAG) in Tegucigalpa, nadería Honduras. They explained pro- further that Honduras minister, minister, the vice the di- hibits harvesting egg-bearing the of lob- services, legal rector of the director of upon investiga- sters.5 Based the NMFS’s affairs, legal secretary general the applicable tion and the verification of the SAG, general the director the DI- foreign by laws the Honduran officials GEPESCA, and legal the advisor for the charged regulating fishing the lobster Agropecuaria Servicio Nacional de Sanidad industry, government prose- the decided to (SENASA)3 confirmed that the lobsters cute for roles in the defendants their the exported had been without illegally first illegal importing Subsequently, scheme. being processed. and inspected Further- more, grand jury forty-seven- the Honduran officials confirmed the returned a DIGEPESCA, 3. Like the the SENASA is an 5. The advisors cited Resolution 003-80 against authority prohibition as for the har agency within the SAG. SENASA is re- vesting destroying egg-bearing lobsters. sponsible hygiene for the enforcement laws substantially similar to Resolution 003-80 regulations. and Law, 70(3) Fishing Article the as both laws prohibit harvesting the or destruction of lob Processing lobster tails involves several eggs. hearing, the ster At law the thawing, steps: sorting, grading and the lob- government acknowledged could not size; by quality placing sters the tails in verify publication of Resolution 003-80 in sleeves; packing plastic individual them upon La therefore Article Gaceta and relied in boxes. 70(3) predicate. as a by testimony Secretary in General superseding indictment ed count second Paz, gov- found that the district court September of 2000.6 establishing met ernment its burden validity of the relevant To determine validity of that served the Honduran laws laws, conduct- the district court Honduran predicates law pretrial hearing ed a Shortly foreign law charges. after the Most the defen- September of 2000. conducted, and hearing, jury trial was hearing pertained to at the dants’ evidence found on multi- guilty the defendants were 030-95, validity of Resolution ple counts.10 for lob- a 5.5-inch size limit established trial, filed a request, After the defendants At the sters.7 seeking their Secretary Gener- number motions to have minister of SAG sent motions, Paz, In highest- convictions overturned.11 al Liliana Patricia SAG’s official, validity they the for- attacked the ranking legal testify convictions, citing Secretary underlying Paz laws their hearing. General eign validity developments as to the various recent testified motions, 030-95, hearing on preparation confirmed that Resolution for a 70(3) Depart- and Article an official from the United Regulation States legal- agents from the Fishing Law8 were effect and ment Justice time covered Federal of Investi- ly binding during the NMFS Bureau early Au- explained gation She also traveled to Honduras the indictment. may of 2001 to discuss the defendants’ gust means which a citizen challenges of a of the Honduran seek the invalidation resolution Honduras,9 They three and she testified that no such laws. received affidavits from officials, including Resolution 030-95 Honduran proceeding regarding Paz, Secretary the va- confirming Persuad- General had been initiated at time. initially Although investigation an action a Honduran who claims focused citizen adversely by shipment in the to be affected administra- the seized referenced some facsimile, charged tive rule to seek a declaration that the rule is the indictment the defen- *7 brought action is upon numerous invalid. Such an first dants with violations based Honduran Court of the First of Ad- shipments of lobsters between 1996 and 1999. Instance ministrative Law. Decisions from that professors, experts appealed Two law both in Hondu- may 7. Honduran Court Appeals ran testified for defendants. for Administrative Law. a defendants also submitted number of guilty conspiracy, McNab was found opinions from of the Honduran le- members smuggling, money laundering. community, including attorney gener- and Bland- gal guilty conspiracy, smug- ford was found regional prosecutor of al of Honduras and the violations, Lacey gling, money Act and laun- Especial the Fiscalía Constitución, Para la Defensa de la dering, as prac- well as two lesser included offenses from a and a declaration Lacey under the Act. Schoenwetter was found ticing attorney. Honduran smug- guilty charged conspiracy as for Fishing comprehensive gling, Huang charged a statute guilty 8. The Law is was found as violations, industry. regulating fishing Lacey conspiracy, for Act and false 19, 1959, May labeling. See Decreto La Gace No. ta, June final 11. The set of motions included motion system judicial 9. The includes to dismiss because the failed to indictment crime, charge separate system in a motion a new trial administrative law court for evidence, disputes relating upon newly and a to administrative mat- based discovered adjudicated. Among procedures ters are motion redetermination of upon developments in system available in the based Honduran law. administrative court ond, lidity laws the defendants were chal- they contend that the district court’s lenging. They also received an affidavit interpretation of the Honduran resolutions SAG, from the minister of the stating regulations was erroneous and that government those Honduran officials were the Honduran laws that predi- served as provide authorized to en- advice cates for the convictions were invalid. forcement and of the laws. After Third, McNab argues that the district hearing, the district court dismissed court abused its discretion excluding each of the posttrial defendants’ motions. evidence at trial relating to his “knowl- Thereafter, in August of the district edge” Fourth, of Honduran law. the de- McNab, Blandford, court sentenced and fendants assert the district court ninety-seven Schoenwetter to months of made several respect errors with imprisonment and Huang twenty-four Fifth, jury instructions. they contend that imprisonment. months jury’s verdicts were based insuffi- sentencing, After appeal- the defendants cient evidence. Finally, Schoenwetter and based, ed their convictions in part, upon argue Blandford the district court their contention that the Honduran laws erred in failing postpone their sentenc- predicates used as the Lacey for the ing and in determining the length of their convictions were invalid or void during the sentences. time covered the indictment.12 December of 2001 a attor- DISCUSSION ney and agents NMFS traveled to Hondu- Scope I. Lacey ras to discuss the defendants’ new docu- The first issue we address ments with Honduran prepare officials to phrase whether the “any foreign law” appeal. brief on Once again, Lacey Act includes foreign regulations officials confirmed prior their regarding statements the validi- legally binding provisions other ty of the Honduran laws. have the force and effect of law. The argue phrase defendants that the “any for
The defendants raise a number of issues
eign law” should be read to
mean
First,
appeals.
these consolidated
they
foreign regulations
statutes and not
argue
scope
that the
Act is
provisions
legally
that are
binding. Ac
limited
statutes and that
cording
argument,
to their
Honduran resolutions
Resolution 030-
regulations
list-
ed in the
Regulation
indictment were
95 and
improperly
used
0008-93 do not fall with
predicates
for their
Act,
convictions. Sec-
scope
because
*8
appeal,
12. After the initial notice of
Upon
defen
Intention to Grant New Trial
Remand
court,
dants obtained additional
for their
with the district
subsequent-
which was
misinterpreted
claim that the district court
Blandford, Schoenwetter,
ly adopted by
result, they
Honduran law.
aAs
filed a Mo
motion,
Huang.
initially denying
After
Notice,
tion for Judicial
as well as alternative
granted
the district court
the defendants’ mo-
regarding newly
motions
issued Honduran le
Upon
tion for reconsideration.
reconsidera-
gal opinions with this Court. We denied
tion, the district court affirmed its earlier
prejudice
those motions without
that
and held
certify
order that it would not
its intention to
the motions could be renewed if the district
grant
appeal
a new trial. The defendants
that
certify
grant
court refused to
its intention to
argue
order and
that the district court erred
pursuant
new trial
to United States v. Ells
denying
certify
the motion to
its intention
worth,
(11th Cir.1987) (per
they are not statutes.13 (1992) 54, 1146, 112 117 S.Ct. L.Ed.2d 391 Con- they distinction what consider (“[C]ourts presume legislature must that a law or “any regulation gress between in a it and means says statute what means law.” 16 “any foreign any State” and there.”). When, says a statute what 3372(a)(2)(A). § The defendants U.S.C. however, “the is or language ambiguous failing to include argue results, ... may leads to absurd con [we] Congress intended explicitly, regulations history legislative sult the and discern statutes could serve as only foreign intent of v. Congress.” true United States Lacey Act the basis for a (11th Kattan-Kassin, 696 F.2d 895 violation. Cir.1983).14 meaning the plain In accordance with mind, guidance in With this we examine doctrine, our begin construction “[w]e Act. language Lacey The where ... courts should [the Act] provides any is unlawful for “[i]t in begin process legislative always import, export, transport, ... person they often should terpretation, and where receive, sell, purchase or in inter- acquire, well, is with the words of end it as which ... fish of any state or commerce provision.” Harris v. Gar statutory taken, possessed, transported, wildlife or (11th Cir.2000) (en ner, 970, 972 216 F.3d regulation in violation of law or sold denied, banc), 121 cert. 532 U.S. any foreign State or in violation 2214, 150 (2001); L.Ed.2d 3372(a)(2)(A). S.Ct. § law.” 16 U.S.C. (11th Gilbert, 1293, 1298 198 F.3d States “law” “laws ... which defines as those Cir.1999). possession, importa- regulate taking, It is well established tion, exportation, transportation, sale of or of a statute are unam words “[w]hen plants.” fish or wildlife or 16 U.S.C. ... judicial inquiry is com biguous [the] 3371(d) added). (emphasis § plete.” Inc. v. PrimeTime Joint CBS Venture, 245 F.3d Cir. Unfortunately, statutory definition 2001) (first (internal in original) alteration by using defines the word “law” the word omitted); helpful in quotation marks see also Conn. “laws.”15 While the definition is parties dispute following ministry. regulations do not Both statutes and be- 13.The legal explanation frame- publish- they come effective when Gaceta, work: La is ed in Register. equivalent is a consti- The Government Honduras of the Federal gener- republic. system Embassy tutional Its Br. of Amicus Curiae of the of Hon- ally sys- the continental civil law under duras and the de del Asociación Pescadores supreme ... tem. Constitution is the [T]he Supp. Def.-Appellant Caribe in David Hen- Republic. law of the omitted). (citations son McNab (is- adoption of statutes Honduras although may 14. We note resort "Decrees”) preroga- is the exclusive sued language statutory to extrinsic materials if the Congress. tive of the At the same National ambiguous interpretation or if the causes time, the ... the Exec- Constitution vests in results, only excep- absurd the latter is a true authority utive the exclusive to is- Branch Inc., plain meaning (issued tion to the rule. CBS "Regulations^”] Regulations sue *9 ("Stating ambiguity at F.3d 1227 that estab- English, the form of "Acuerdos”—-in "Ac- exception, lishes an instead of "Agreements”) or disestablishes cords” or "Decisions” rule, general predicate things.”). applicable of for the confuses are rules conduct may they all who be affected them and full, 3371(d) provides 15. Section "The Constitution have force of ‘law,’ ‘treaty,’ 'regulation,' terms and 'Indian Regulations provides may be issued that treaties, laws, regulations law' or only by tribal mean Republic of with the President State, regulate taking, Secretary Indian tribal laws which co-signature of (i.e. Minister) exportation, pertinent possession, importation, trans- [sic] Chief
1237 determining tionary what “law” regulate, (Bryan eds., must 889 A. et al. Garner ed.1999). it is silent as to whether “law” is restricted 7th This plausible definition is regulations or oth statutes includes phrase “any when foreign law” is read provisions governments er that foreign use conjunction with rest of Thus, legally binding to promulgate rules. 3372(a)(2)(A). § For example, the defen usage we turn first to the common or “any dants assert law” foreign can ordinary meaning of the word “law” to foreign statutes, refer because to plain meaning. determine its Consol. Cf. “any foreign read law” to regula include Bank, Comptroller N.A. v. of Office of tions would render the “regulation” word (11th Currency, 118 F.3d Cir. phrase the earlier “any regula law or 1997) (“In statutory the absence a defi tion of meaningless.16 State” term, nition of a we look to the common While defendants advocate this in- usage meaning.”). of words for their “[T]o statute, terpretation of the it is not the usage ordinary determine common or only reasonable one. Another Con- term, a meaning of courts turn to often gress punish intended to violations state dictionary guidance.” definitions for See laws and state regulations punish and to Inc., 245 CBS F.3d at 1223. laws, violations of foreign whatever form Collegiate Merriam Webster’s Dictio may those take. The Ninth nary provides several definitions Circuit, in explaining interpreted why it practice “a including binding custom or “any foreign to cover law” different forms community: a rule conduct action or laws, emphasized how the prescribed formally recognized or bind as legal world’s systems defy diverse easy ing by controlling authority” or enforced noted, categorization. definition or It customs, body and “the whole of such range of the wide [B]ecause forms of practices, or rules.” Merriam Webster’s (Frederick may given many take the world’s Collegiate Dictionary C. eds., ed.1996). governmental systems, diverse Mish et al. 10th Under “law,” Congress these be hard-pressed broad definitions the word would to set phrase “any law” incorporates forth a adequately definition would and regulations Honduran decrees encompass all of them.... if 594,464 issue. See United States Congress sought “any had to define for Salmon, Pounds 871 F.2d law” eign specificity kind of Cir.1989). whatsoever, might effectively have im ... munized under the Act [conduct] hand, On the other there are nar more despite violation conservation laws of row definitions the word “law” that also large portion of regimes the world’s commonly used. Black’s Law Dictio possess systems govern of law and nary provides several definitions of “law,” defy easy word ment that or including one defines law definition cate simply “[a] as statute.” Black’s Dic gorization. Law tion,
portation, plants.” transportation, or sale of fish or wildlife or or sale or of fish wildlife 3371(d). § plants,” 16 U.S.C. or and so forth. We read the word "law” to refer to laws premise statutory 16. “A basic construction regulate taking, possession, "which im- interpreted that a statute so that is to no portation, exportation, transportation, sale being or meaning- shall be words discarded less, redundant, plants,” of fish or wildlife or and the word surplusage.” mere Canals-Jimenez, "treaty” regulate to refer to treaties "which States v. 943 F.2d (11th Cir.1991). possession, importation, taking, exporta- *10 1238 Salmon, he as neighboring at Id.
594,464, 871 F.2d into states. Pounds of words, necessary was to the that a federal law argument serted In other 827-28. limit in wildlife ille specifically chose to outlaw the interstate traffic Congress origin.18 their Id. regulations, gally statutes and taken from state law to domestic language the need to specifically By Congress recognized chose to use 1981 the but to the wide variet- in to “any Lacey response law” cover the Act foreign strengthen fish, foreign laws in countries. in wildlife illegal ies of “the massive trade (1981) 17,327 127 Rec. plants.” Cong. and there are The net result Chafee). (remarks Lincoln of Senator the ways interpret to several reasonable in Lacey the Act Congress thus amended “any foreign the phrase word “law” ... in the “to insufficiencies” 1981 correct we ambiguity, As a result of this law.” simplify Act and “to administration the to beyond language statute look 97-123, 2at Rep. S. No. enforcement.”19 now legislative intent. We thus determine (1981), in 1981 U.S.C.C.A.N. reprinted history Lacey legislative look to the 1748, 1749. intent. Fed. Congress’s Act to ascertain Thomas, 220 Atlanta Reserve Bank parts Although there certain Cir.2000). (11th try “In 1239 F.3d Lacey history of the Act legislative intent exam ing Congressional to learn position defendants’ to some statute, of a we history ining legislative extent, history reflects that legislative original purpose look to enactment intention Congress’s “the thrust [main] served, mean statutory discussion of its expand the Act was to amending ing reports, in committee effect its effect.”20 scope enhance deterrence accepted rejected amendments whether Salmon, 594,464 871 F.2d at Pounds of pas preceding remarks debate Indeed, clearly Congress stated 828. Inc., Frito-Lay, 611 sage.” Rogers v. strengthen to the amendments were meant Cir.1980).17 1074, 1080 F.2d protection to laws and existing wildlife need- “provide government] [the tools Rep Lacey Act was introduced illegal effectively to control the massive F. ed Lacey of Iowa 1900. resentative John (1981) (discuss fish, 97-276, plants.” 127 7 trade wildlife H.R.Rep. No. at Act). (remarks 17,327 of Senator Lacey Cong. Rec. ing enactment of Chafee); 26,537 Lacey Cong. also 127 Rec. Representative recognized that indi see (1981) (remarks Representative John protect to their vidual states were unable Breaux). wildlife, Report provided their did reach The Senate because Prichard, City Lacey prohibited In F.2d in that it the inter- 17. Bonner v. Act (en banc), (11th Cir.1981) taken transportation state of fish in violation Cong. binding precedent foreign Rec. adopted all of state or law. See decisions 17,329 Baker). (remarks prior of Senator Howard the former Fifth Circuit handed down September the close 1981. of business on point to the fact that 20. The defendants prohibited Lacey pre-1981 Lacey was wild 1935 the Act amended trade in “any regula over include because concern law or life taken in violation of marketing illegal country,” of wildlife from other tion of State or but H.R.Rep. Lacey at 7. countries. No. now the Act does not refer to regulations. legislative laws and "While one-sided, history totally the thrust of 19. The Act Amendments of 1981 com- is not amending Congress’s the Act was Black intention in bined of 1900 26,537 Cong. expand scope deter and enhance its Bass Act of 1926. 127 Rec. Salmon, 594,464 (1981) (remarks Representative John rence effect.” Pounds Breaux). Black Bass Act was similar F.2d
1239
Lee,
the amendments “would allow
Act.21 See
v.
that
United States
937 F.2d
1388,
1991)
provide
more ade-
Federal Government
(holding
Cir.
that
State,
range
full
support for the
of
quate
fishing regulation
Taiwanese
constituted
foreign
protect
Federal laws that
wild-
law”); 594,464
Salmon,
“foreign
Pounds of
97-123,
S.Rep. No.
at 4. The
same).
life.”
871 F.2d
(holding
at 828
amendments
intended to “raise both
As we have determined
the phrase
penalties
civil and criminal
of the cur-
“any foreign
nonstatutory
law” includes
target
rent laws and
commercial violators provisions
such
Resolution 030-95 and
Cong.
and international traffickers.” 127
0008-93,
Regulation
turn
now
to the
(remarks
Chafee).
17,328
of Senator
Rec.
argument
defendants’
their convic-
of
By strengthening
penalty provisions
upon
tions were based
the district court’s
Act,
Lacey
Congress
give
intended “to
interpretation
erroneous
of
stronger
the Federal Government
enforce-
stop
large-scale importa-
ment tools
II. Honduran Laws
taking
...
enjoy
tion and
of fish
which
The defendants contend that the Hondu-
...
protection
under other
laws.”
predicates
ran laws that served as
for their
(remarks
17,329
at
Id.
Senator James
convictions were
Specifically, they
invalid.
Thurmond).
Strom
(1)
030-95,
argue that
Resolution
which
legislative
examination of the
Our
histo
established a 5.5-inch size limit for lob-
Lacey
ry
Act leads us to the conclu
sters,
never had the effect of
because
Congress
by
sion
no means intended
promulgated
it was
improperly and has
application
to limit the
of the Act
been declared void
adoption
1981 amendments.
(2)
courts;
Regulation
which es-
untenable,
interpretation
defendants’
be
inspection
tablished
and processing re-
cause it
restrict
application
would
quirements for the
fishing
lobster
indus-
unduly
Lacey
and would thwart
1995,
try, was
repealed
prior to the time
Congress’s
goal
strengthening
stated
(3)
indictment;
covered
by amending
the Act
See
id.
70(3),
prohibits
Article
the harvest-
(remarks
Chafee).
17,328
of Senator
ing
eggs,
and destruction
lobster
was
interpretation
phrase
Their narrow
misinterpreted by the
district
“any
prevent
law”
would
wild
repealed retroactively
was
in 2001.
many
life conservation
countries
As the defendants were found
serving
Lacey
from
as the basis for
guilty
conspiracy
under a
ver
general
utility.
violations and would limit the Act’s
dict,
way
there is no
to know which Hon
regulations
therefore conclude that
We
relied
jury
duran law the
deter
provisions
legally
and other such
binding
mining
guilt.
if
their
foreign governments may
promulgate
protect
encompassed by
wildlife
three Honduran laws that the defendants
Lacey
phrase “any foreign
challenge
during
pe-
law” in the
were invalid
the time
States,
argue
v.
defendants also
that because
the statute.” Moskal
108,
ambiguous
meaning
Act is
as to the
U.S.
riod covered
position.
must be reversed.22
dants’ convictions
867, 376,
486
Maryland,
v.
U.S.
See Mills
begin
analysis,
As
our
we
we
(1988) (In
1860,
33. support The evidence in the record contradicts this the district court's determination that assertion and Regulation during establishes the Honduran 0008-93 was valid time the government indictment, regarded hygiene regulation period the by covered the the defen- repeal interpretation as valid between the time of the illogical 1995 dants’ leads to an re- express repeal of Decree 40 and the 1999 repeal Regulation sult. An automatic Regulation 0008-93. The March in 1995 would 0008-93 have created a four- by year during statements the Honduran advisors window there which were no processing requirements described the sanitary regulations man- fishing. for This lobster by Regulation dated considering 0008-93 and Decree would have been an odd result very same decree by Congreso that the defen- decree issued repealed Regulation strengthen hy- dants contend 0008-93 Nacional was intended to pretrial foreign hearing, giene requirements. in 1995. At the 70(3) harvesting repealed prohibition against
Article profit for is not our egg-bearing lobsters 70(3) Fishing Article Thus, reject we the defendants’ concern. or harvesting destruc prohibits Law argument that Article 96 of 154, Decreto See No. eggs. tion of lobster apply requires we Constitution 17, Gaceta, La June May for the rea- retroactively 2001 amendment 70(3) argue that Article The defendants respect to Resolution 030- sons stated with the destruction or collec prohibit not does that Article Accordingly, conclude profit. They con eggs for tion lobster 70(3) predicate defen- interpretation proper was a for the the district court’s tend that prohibited harvesting that the law dants’ convictions. species was themselves egg-bearing the defendants’ newfound erroneous.35 from the Honduran does 70(3) how Article can be We fail to see during change period the fact that the time prohibit the destruction read than to other indictment, by the the laws at covered for harvesting eggs of lobsters or certainly Although we issue were valid. eggs to profit. The destruction of sell posi- respect appears to be a clear viola- female lobsters tion, developments the recent since the 70(3), provides of Article tion newly opinions trial rendered from imprisonment by fine or punishment turn Honduran officials cannot what were destroy eggs, harvest who or “[t]hose illegal shipments legal lobster lobster into fish, or chelonians other offspring retroactively. shipments profit.” species for Id. The de- aquatic Having that Resolution 030- determined argument regarding legality fendants’ 70(3) 0008-93, and Article Regulation con- capturing lobsters is egg-bearing during were the time covered valid language
trary plain of Article proper the indictment and thus were 70(3).36 predicates for the Act charges, we argue that Article defendants also re- briefly now address the defendants’ 70(3) repealed retroactively in Febru- was maining appeal. The defendants issues ary of the enactment of Decree (1) argue that the district court abused its As Congreso Nacional. by excluding at trial discretion evidence above, duty respect stated our to each “knowledge” Hon- relating McNab’s of the Honduran laws to determine law; (2) district court' duran made they during whether valid the time *18 respect jury with several errors the indictment. period by covered Wheth- 70(3) instructions; (3) to Article there was insufficient evi- er 2001 amendment swimming provided absolutely prohibited legs on ab- that to "[i]t 35. Lobsters have their swimmerets, lob- called which female pleopods domens cut of the to remove Lobsters eggs. Encyclope- sters use to hold 7 The New any eggs.... eggs All the with will lobsters ed.1998). dia The Britannica any exception. sea returned to the without of some of the lobsters in the swimmerets you purpose, For will have to instruct the that shipment eggs clipped seized were off and the work in the boats on how to fisherman who were removed. gen- identify The letter them.” from McNab’s manager captains July eral in of 2000 to only interpretation contrary to 36. Not their they may capture that "not lobsters instructed 70(3), plain language directly it Article reproductive gravid phase their or with own to conflicts McNab's instructions (with absolutely eggs). prohibit- It is lobsters captains harvesting egg-bearing boat his egg ed to remove sacs from the lobster to prohibited. lobsters was The October 1999 ” eggs.... remove its fishing captains letter from McNab his boat verdicts; jury’s It surprise denee should come as no to anyone (4) failing court erred in district “expert” some witnesses were postpone Schoenwetter and Blandford’s correct and were wrong. some Nor should determining and in sentencing length surprised bewe that it was the courts thoroughly their After re- sentences. ultimately Honduras which answered the record, viewing the we find that these question. That way is the it works issues are without merit. and in the United States stated, America. Simply position is my CONCLUSION by that we are bound rulings Thus, we conclude that the Honduran Honduran declaring courts Resolution predicates laws used as the for underlying case, 030-95 null and void. This being the the defendants’ convictions fall within the the defendants convictions be re- must scope of Act and valid and versed since one of the Honduran laws binding during time legally cov- upon by jury relied guilt has finding ered remaining the indictment. The nullity. now been found to be a issues raised defendants were de- respectfully, Most I disagree with the properly cided district court or are majority’s conclusion the government without merit. We therefore AFFIRM position. of Honduras has changed its the defendants’ convictions and sentences. Government officials testified on both sides FAY, of the issue before Judge, dissenting: Circuit the district court. There was no one official voice for the opinion majority The is both thorough But, government of Honduras. there is scholarly dealing compli- this now. The Honduran courts have ruled hesitation, cated matter. I With some and the Honduran Embassy filed an has portion from respectfully most dissent advising amicus brief us of the Honduran majority upholding opinion the va- position lidity government’s of Honduran Resolution 030-95. — Resolution majority opinion The theme is that is null during and void and was so of Honduras has “shifted” charged critical time second su position. question for determina- perceding indictment. That is the phrased being complicated by tion is government position official I am aware changed position or new in this record. government. majority then decides agree key all component We that the this issue within the framework of whether 3372(a)(2)(A) § any alleged Lacey Act vio- or we are free to follow the Honduran predicate lation is the commission position. original concerning Foreign State or offense fish Try might, simply as I I cannot read this that, agree pur- wildlife. We further way. record that There una- was never poses appeals, predicate of these three of- nimity agreement concerning nor the va- pertinent. three, my fenses are those Of lidity of question Resolution 030-95. That *19 goes concern to Resolution 030-95 con- But, hotly was throughout contested. the cerning the minimum legal size of harvest- of this of litigation, course the resolution ed lobster tails. question weight was based the notes, correctly As majority the the dis- given by the judge trial the evidence a properly trict court conducted presented by government during the U.S. hearing to law determine whether Resolu- on pretrial hearing a At that law. was, time, fact, tion a valid the courts not 030-95 Honduran Honduran had ruled. they have. during Now the time in the charged law Honduran courts do rulings the Over indictment. superseding second or question as to whether raise a second a in Honduran expert an testimony of applies retroactively. As ruling the not Minis- former professor law Honduran above, the Hondu- language of quoted Justice, Attorney-General then of try mean construed to ran Court could be Honduras, the Hondu- of Republic of only. is application That prospective others, Dis- Bar Association and ras case. majority takes this position Court, testimony of upon the based trict Therefore, question critical before this offi- government Honduran one lower-level whether or not Resolution 030-95 court is Paz, Secretary cial, General of Liliana at the time of the defendants’ was valid Livestock, Ministry Agriculture in the su- charged conduct as second that Resolution 030-95 was concluded This is de- perceding question indictment. law. valid by whether invalidation termined conviction, defendant Following trial and is be retroac- applied Resolution 030-95 to (“McNab”) chal- McNab David Hensen If invalidation tively prospectively. or 030-95 lenged validity of Resolution applied retro- Resolution 030-95 is be Instance of Administra- Court of First me that reversal actively, seems to (“Honduran in Honduras tive Law is mandated. the defendants’ convictions Court”). opposed by challenge That was applied pro- only is to be If invalidation attorney representing government an required. not spectively, reversal is conclusion of that At the of Honduras. agree we review We all district Court declared proceeding, the Honduran law de interpretation court’s null and void. Resolution Gecas, F.3d novo. United States 2001, 23, May the Hondu- Specifically, (11th Cir.1997) (en banc). We found: ran Court agree also that under certain circum- 030-95] [does] First: ... [Resolution predicate underlying Lacey stances an having by law virtue not conform to independently prose- need not be offense the time code at violated Borden, See States v. cutable. challenged Second: the issued. [it][was] (4th Cir.1993) (affirming F.3d 1058 ..., 030-95 of Decem- No. [Resolution] Act conviction where enforcement voided, entirely but this ber [is] underlying predicate state law was barred annulment purposes [its] is state of limitations by applicable statute This Resolu- inapplicability: and future limitations). by but not federal statute of any right to claims. tion not confer does case, Borden, However, similar R. at Ex. B. The Court 5:324 fundamentally different than this case Res- the fact that premised its decision on predicate substantive criminal where properly not issued olution 030-95 was supporting the Act convictions law Republic of Honduras enforced, the President proce- cannot be not because Secretary or proper bar, and authorized but the law has dural because itself Secretary required through of State as Under invalidated the courts been words, Subsequently, under Honduran In other what was nullification. appealed be a thought to be a crime turns out to the Court of It not- ruling Court’s under Honduran law. bears crime (“Hon- implicated, Appeals ing of Administrative Matters that had U.S. been be in Appeals”) which on of the convictions would not duran Octo- reversal Court *20 re- 11, 2001, easily be question the correctness of the case would ber confirmed In the in the defendants’ favor. solved the Honduran Court’s decision. States, where a substantive crimi- tion point, United 030-95. To this there au- declared subsequently nal law is to in the particu- thorities record which I find courts, any convictions by larly invalid deciding relevant in whether would be reversed. thereon Honduran Court’s invalidation of Resolu- tion should be retroactively applied. troubling is the fact that Further as law, matter of Honduran constitutional We start with the official of voice Hon- these defendants could not be tried and duras in the country United States. The convicted for violation of Resolution 030-95 Honduras, of through its Embassy Honduras, Honduras. D.C., has filed an amicus Washington, States, any criminally enforceable stating brief unequivocally that retroactive statute later declared to be invalid application is the law of Honduras. The retroactively applied courts is to crimi- current Attorney General of Republic Article of nal defendant. Honduras, Leiva, of Sergio Zavala Na- specifically provides, “[t]he Constitution tional Human Rights Commissioner of the effect, not have Law does retroactive ex- Republic Hpnduras, of Leo Valladares penal matters new law cept when the Lanza,1 the Secretary current State (i.e., delinquent criminally favors the con- [ Livestock, of Agriculture Offices victed) the person prosecuted.” that is ] Downing Guillermo Alvarado and Secre- Republicá de Constitución la de Honduras tary Downing’s subordinate star U.S. 96. art. government witness before district court, Secretary Ministry General majority makes note of Article 96 Livestock, Paz, Agriculture Liliana simply but asserts inapplicability all position concluding that time the retroactive “[a]t defen- conduct, application is harvesting required. dants’ witness lobsters under presented suggesting ap- 5.5 inches was a violation of Resolution that retroactive above, plication required As if is not is 030-95.” stated the invalida- Juan Arnaldo retroactively Espinoza, tion of Resolution 030-95 is Hernandez an Assistant Prose- be, applied, I cutor Ministry as believe must then at the General of the Public conduct, Republic time of the defendants’ there Honduras.2 the over- would not have whelming been violation evidence Resolu- before this court is altered, Although opinion opinion premised his assumption 1. was never on the manner, Law, 030-95, changed Fishing amended or the ma- de- Resolution jority notes that a National Marine Fish- fines the minimum lobster harvest size. Therefore, 030-95, agent eries Service who interviewed Commis- invalidation of Resolution implemented pursuant sioner Lanza indicated that Commissioner a resolution au- " Law, 'pressured' thority Fishing import Lanza revealed that he felt is without representatives quick question retroactivity McNab’s issue a deci- and the is rendered opinion sion.” irrelevant. This is mistaken for two Firstly, Espinoza’s opinion critical reasons. that, ignores purposes the fact of U.S. opinion, Attorney In his Assistant General predicate charged act the Espinoza defendants were ("Espinoza”) indicates that there is violating with is Resolution not the application no retroactive of the invalidation Espinoza’s Fishing Secondly, opinion Law. of Resolution 030-95 because "the sanction that, ignores regard fact applies to minimum conduct [the defendants'] size, Fishing originates lobster harvest Law is silent based on measure that in the Fishing activity Law and not in the and directs such restrictions to be fashioned pursuant regulation. Appellee's Executive See Decreto No. Branch.” Addendum 19, 1959, Gaceta, 9, 1959, Foreign Upon May Law Materials at tab 1. closer La June art. examination, Espinoza's it becomes clear that *21 interpret this court should seek to ion and of the retroactive the side squarely on opinion proper in its of Resolu- the Honduran Court’s of the invalidation application con- to no other I can come context. tion 030-95.
clusion. important majority advances the interpretation of appropriate
As deci principle finality of its of the terms use Court’s Honduran I proposition, agree general a sion. As inapplicability,” “future and “annulment” aspect of finality important is an provides the most Leiva Attorney General However, in the jurisprudence. American At- explanation. and reasonable reasoned crimi of an substantive context invalidated explains: torney Leiva General basis a criminal law which forms the nal of Honduras that the laws The reason conviction, prosecution or reliance on and, the Court Adminis- particular, misplaced. As stated concept finality is specific lan- its Appeals, with trative law, above, both U.S. and Honduran under only set forth its judgment, guage its a application is warranted for retroactive guarantee inapplicability future charged or convicted criminal defendant State, protecting it security of the invalid criminal subsequently a declared and losses that could have from damages States, 417 Cf., Davis United statute. enforcement of an caused been 2298, 2305, 94 S.Ct. U.S. void as matter of act is null and (in (1974) 109, 119 the context of L.Ed.2d pursuant to 28 petition for relief U.S.C. ¶ 8). (Leiva Decl. § if conviction and concluding that Apparently, govern- in Honduras made crimi punishment are for an act not liability subject to civil may be ment “[tjhere law, can no room for nal subsequently of a de- the enforcement inherently that such a circumstance doubt Therefore, in con- invalid law. clared miscarriage jus complete in a results ” the Honduran Honduran text of omitted)). (Internal .... quotations tice simply language makes sense Court’s I that the emphasis, repeat again For liability limit the seeks to majority opinion extensively discusses treasury. precise lan- protect position changed critical of the strongly supports guage of the Honduran Court government. or shift Following the use of interpretation. this may terminology give While that comfort inapplicability” is and “future “annulment” simply not accurate. majority, it is following illuminat- by the a colon followed gave While various officials “[tjhis Resolution ing does language, opinions regarding the conflicting to claims.” Attor- right confer Resolution this was before com- explanation, as ney Leiva’s General courts The Honduran ruled. the other evidence before pared to agree, courts have now ruled and both Furthermore, court, compelling. is most null void. The Resolution 030-95 was interpret should not this court light in an unfavorable majority casts this above, in As stated law in a vacuum. my something opinion, akin to sinister. Honduras, of the Honduran Article 96 occurs rou- this is no different than what retroactively the in- applies Constitution country. Attorneys, and even tinely our validation of Resolution 030-95 Attorney or the General of state The Honduran Court criminal defendant. States, express opinions often been aware of the certainly would have find after a statutes about Article 96 when existence and effect of That is opin- challenge, they wrong. scope of its language crafting *22 here. happened all that Some of the ex- But,
perts right; wrong. KAPLAN, Kaplan, some were Elwood I. Norma Plaintiffs-Appellees, now spoken the Honduran courts have is simply there no doubt Resolution 030-95 is null and void as if it never exist- DAIMLERCHRYSLER, A.G. f.k.a. Da- ed. Aktiengesellshaft, imler-Benz Mer- suggest newly To that the issued state- cedes-Benz, U.S.A., Inc., f.k.a. Mer- opinions ments and Honduran officials America, Inc., cedes-Benz of North carry weight do not the earlier Defendants-Appellants. a strange position statements is for mem- No. 02-12453. judiciary.
bers of the The so-called “shift Appeals, United States position” litigation is the of lawful Court result within the courts I Eleventh Circuit. nation. think we would be shocked should the May tables reversed and a nation simply ignored rulings one our
because caused some frustration or in-
convenience. supports
The evidence in this case guilty
conclusion that the defendants were
of knowingly violating the law at the time harvested, shipped
they and sold these prosecutors very
“shorts.” did their
best to establish the law
which is under It essential Act. easy understand the frustration in- But, present
herent this situation. Act, terms, very dependent foreign sovereign. the laws of a situation,
this do control the out- challenges
come of made those underly-
ing No suggested laws. one has was not exercising rights
McNab his lawful
as a citizen of Honduras or the courts authority Honduras were without is- they
sue the decisions did. reluctantly,
Most I therefore dissent.