United States v. David Henson McNab

331 F.3d 1228
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 29, 2003
Docket01-15148, 02-10810 and 02-11264
StatusPublished

This text of 331 F.3d 1228 (United States v. David Henson McNab) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. David Henson McNab, 331 F.3d 1228 (11th Cir. 2003).

Opinions

WILSON, Circuit Judge:

The Court hereby substitutes the following opinion in place of the opinion which was issued on March 21, 2003.

[1232]*1232David 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.1

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 Dirección General de Pesca y Aeuicultura (DIGEPESCA) in Honduras2 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]*1233DIGEPESCA 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.

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 Ga-nadería (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)3 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.

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 ad-visors 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 0008-93.4 They further explained that Honduras prohibits the harvesting of egg-bearing lobsters.5 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]*1234count second superseding indictment in September of 2000.6

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.7 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 Law8 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,9 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.

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331 F.3d 1228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-henson-mcnab-ca11-2003.