2001 WL 34611249 (11th Cir.)

For opinion see 331 F.3d 1228

United States Court of Appeals, Eleventh Circuit.

UNITED STATES OF AMERICA, Plaintiff/Appellee, v. Robert D. BLANDFORD, Defendant/Appellant.

No. 01-15148.

November 21, 2001.

ON APPEAL FROM UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA

Initial Brief

Michael I. Rose, P.A., Michael I. Rose, Esq., Attorney for Defendant/Appellant, Robert D. Blandford, 150 West Flagler Street, Museum Tower 1525, Miami, Florida 33130, (305) 373-6300

*i STATEMENT REGARDING ORAL ARGUMENT

Defendant/Appellant Robert D. Blandford respectfully requests that oral argument be set in this case. This appeal raises numerous complex issues, including some arising from his conviction under 16 U.S.C. 3372 ("The Lacey Act). Issues IV and V relating to the Lacey Act may be either of first impression or without substantial case law for decision-making in this Circuit. Oral argument will ensure a full and fair hearing of the substantial issues raised by all parties.

STATEMENT OF TYPE SIZE AND STYLE

The type size used in this Initial Brief is 14 point. The style used is Times New Roman Regular.

STATEMENT OF APPEAL PREFERENCE

This appeal is entitled to preference because this is a criminal case where Appellant Robert D. Blandford has been sentenced to 97 months imprisonment.

STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction of this appeal pursuant to 28 U.S.C. 1291 which gives United States Court of Appeals jurisdiction to review final orders and decisions of the district courts of the United States of America.

*ii TABLE OF CONTENTS

Certificate of Interested Persons ... C-1

Statement Regarding Oral Argument ... i

Statement Regarding Type Size and Style ... i

Statement of Appeal Preference ... i

Statement of Jurisdiction ... i

Table of Contents ... ii

Table of Citations ... v

Statement of the Issues ... 1

Statement of the Case ... 4

Summary of the Argument ... 18

Argument and Citations of Authority ... 20

I. The Judge Erred In Sentencing Blandford In Count 1(d) By Using USSG 2S1.1 Because The Judge Did Not Charge The Jury In The Essential Elements Of "Promotion" Money-Laundering Under 18 U.S.C. 1956(a)(1)(A)(i) ... 20

II. The Judge Erred When He Denied Blandford's Motion For Judgment Of Acquittal On Count 1(d) Because There Was No Proof Beyond A *iii Reasonable Doubt That He Had Conspired To Commit Promotion Money Laundering Under 18 U.S.C. 1956(a)(1)(A)(i) ... 28

III. The Judge Erred By Imposing Blandford's Sentence With Reference To Count 1(d) Because Punishment Was Calculated By Utilizing A Guideline Which Exceeded The Statutory Maximum Under The General Conspiracy Statute In Violation Of Apprendi v. New Jersey ... 30

IV. The Judge Erred By Failing To Grant Blandford's Motion To Dismiss For Failure To Charge A Crime Because The Lacey Act Violations Were Grounded In Honduran Regulations And Resolutions And Not Statutes ... 34

V. The Judge Erred By Refusing To Dismiss The Second Superseding Indictment Where Honduran Regulations And Resolutions Relied Upon By The Government To Convict Blandford Had Been Invalidated ... 39

VI. The Judge Erred When He Refused To Grant Blandford A Continuance Of The Sentencing Hearing Because A Revision To USSG 2S1.1 Was To Become Effective On November 1, 2001 Which Would Have Reduced Blandford's Term Or imprisonment ... 46

VII. The Judge Erred By Failing To Utilize The Guideline For Blandford's 1957 Money-Laundering Convictions Which Would Have Yielded A *iv Lower Guideline Imprisonment Range Than Under The Total Punishment Under Count 1(d) For A Violation Of 1956 Money Laundering ... 49

VIII. The Judge Erred By Increasing Blandford's Total Offense Level By Two Levels For Obstruction Of Justice Where There Was No Proof By A Preponderance Of The Evidence That His Conduct Significantly Obstructed Or Impeded The Official Investigation Or Prosecution Of The Case ... 51

Conclusion ... 53

Certificate Of Compliance ... 54

Certificate Of Service ... 55

*v TABLE OF CITATIONS

CASES

*Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) ... 18, 30-33

Arizona v. Fulminante, 499 U.S. 279 (1991) ... 17

Bates v. United States, 522 U.S. 23 (1997) ... 35

Harris v. United States, 149 F.3d 1304 (11th Cir. 1998) ... 34, 39

Jones v. United States, 120 S. Ct. 1904 (2000) ... 19, 37, 45

*Ratzlaf v. United States, 510 U.S. 135 (1994) ... 37

United States v. Anderson, 200 F.3d 1344 (11th Cir. 2000) ... 17

United States v. Arjoon, 964 F.2d 167 (2d Cir. 1992) ... 26

United States v. Brownlee, 204 F.3d 1302 (11th Cir. 2000) ... 17

*United States v. Calderon, 169 F.3d 718 (11th Cir. 1999) ... 19, 25, 28-29

United States v. Galvez, 108 F. Supp.2d 1369 (S.D. Fla. 2000) ... 26

United States v. Garcia, 718 F.2d 1528 (11th Cir. 1983) ... 36

United States v. Lawrence, 47 F.3d 1559 (11th Cir. 1995) ... 19, 52

United States v. Leeper, 886 F.2d 293 (11th Cir. 1989) ... 53

United States v. Majors, 196 F.3d 1206 (11th Cir. 1999) ... 21

*vi *United States v. Miller, 22 F.3d 1075 (11th Cir. 1994) ... 18, 22- 23, 25

United States v. Olano ... 17, 27, 33

United States v. Pistone, 177 F.3d 957 (11th Cir. 1999) ... 17

United States v. Prosperi, 201 F.3d 1335 (11th Cir. 2000) ... 17

United States v. Thigpen, 4 F.3d 1573 (11th Cir. 1993) ... 36

United States v. Tokars, 95 F.3d 1520 (11th Cir. 1996) ... 17

United States v. Wilson, 993 F.2d 214 (11th Cir. 1993) ... 26

United States v. Winfield, 997 F.2d 1076 (4th Cir. 1993) ... 26

OTHER AUTHORITY

STATUTES:

16 U.S.C. 3371 et seq. ("The Lacey Act") ... 19, 26, 30, 34-35, 37, 43, 49- 50

18 U.S.C. 371 ... 21, 32-33

18 U.S.C 1956(a)(1)(A)(i) ... 18, 20-21, 23-25, 27-29

18 U.S.C. 1957 ... 20, 25, 31, 49

18 U.S.C. 3582 ... 46

*vii UNITED STATES SENTENCING GUIDELINES:

2B1.1 ... 26

2F1.1 ... 26

2Q2.1 ... 26-27, 47

2S1.1 ... 19, 21, 32, 46-48

2X1.1 ... 21

3C1.1 ... 51-52

3D1.2 ... 22

3D1.3 ... 22

*1 STATEMENT OF THE ISSUES

I. WHETHER THE JUDGE ERRED IN SENTENCING BLANDFORD IN COUNT l(d) BY USING USSG 2SL1 WHERE THE JUDGE DID NOT CHARGE THE JURY ON THE ESSENTIAL ELEMENTS OF "PROMOTION" MONEY-LAUNDERING UNDER18 U.S.C. 1956(a)(1)(A)(i).

II. WHETHER THE JUDGE ERRED WHEN HE DENTED BLANDFORD'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT l(d) WHERE THERE WAS NO PROOF BEYOND REASONABLE DOUBT THAT HE HAD CONSPIRED TO COMMIT A VIOLATION OF 18 U.S.C. 1956(a)(1)(A)(i) BY PROMOTING ONGOING ILLEGAL ACTIVITY WITH FUNDS HE USED TO PAY HIS SUPPLIER AND AGENTS.

*2 III. WHETHER THE JUDGE ERRED BY IMPOSING BLANDFORD'S SENTENCE WITH REFERENCE TO COUNT l(d) WHERE PUNISHMENT WAS CALCULATED BY UTILIZING A GUIDELINE WHICH EXCEEDED THE STATUTORY MAXIMUM UNDER THE GENERAL CONSPIRACY STATUTE.

IV. WHETHER THE JUDGE ERRED BY FAILING TO GRANT BLANDFORD'S MOTION TO DISMISS FOR FAILURE TO CHARGE A CRIME WHERE THE LACEY ACT VIOLATIONS WERE GROUNDED IN HONDURAN REGULATIONS AND RESOLUTIONS AND NOT STATUTES.

V. WHETHER THE JUDGE ERRED BY REFUSING TO DISMISS THE SECOND SUPERSEDING INDICTMENT WHERE THE HONDURAN REGULATIONS AND RESOLUTIONS RELIED UPON BY THE GOVERNMENT TO CONVICT BLANDFORD HAD BEEN INVALIDATED.

*3 VI. WHETHER THE JUDGE ERRED BY REFUSING TO GRANT BLANDFORD A CONTINUANCE OF THE SENTENCING HEARING WHERE A REVISION TO USSG 2S1.1 WAS TO BECOME EFFECTIVE ON NOVEMBER 1, 2001 WHICH WOULD HAVE REDUCED BLANDFORD'S TERM OF IMPRISONMENT.

VII. WHETHER THE JUDGE ERRED BY FAILING TO UTILIZE THE GUIDELINE FOR 1957 MONEY LAUNDERING WHICH WOULD HAVE YIELDED A LOWER SENTENCE THAN UNDER THE GUIDELINE FOR THE 1956 CONVICTION UNDER COUNT l(d).

VIII. WHETHER THE JUDGE ERRED BY ENHANCING BLANDFORD TWO LEVELS FOR OBSTRUCTION OF JUSTICE WHERE THERE WAS NO PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT HIS CONDUCT HAD SIGNIFICANTLY OBSTRUCTED OR IMPEDED THE OFFICIAL INVESTIGATION IN HIS CASE.

*4 STATEMENT OF THE CASE

A. Course Of Proceedings And Disposition In The Court Below.

The first indictment in this case was handed down by a grand jury sitting in the Southern District of Alabama on May 25, 2000. That indictment named as Defendants David Henson McNab ("MCNAB"), Robert D. Blandford ("BLANDFORD"), Abner J. Schoenwetter ("SCHOENWETTER"), and Diane H. Huang ("HUANG") ("DEFENDANTS"). R7-11. Pursuant to Fed. R. Crim. P. 12(b) and 26.1, on June 23, 2000, Plaintiff United States of America ("Government") filed a request for a pretrial ruling on the applicability of Honduran and Florida law. Because the main charges against DEFENDANTS arose from violations of Honduran fishing laws and regulations, the Government wanted to dispose of these issues early in the proceedings. R7-46.

On June 26, 2000, MCNAB filed a motion to dismiss due to improper venue and lack of jurisdiction to which the Government responded on July 6, 2000. [FN1] R7-52, 79. On July 17, 2000, the Government filed a supplemental motion in support of its request for a pretrial determination of Honduran and Florida law. R7-100 *5 (Folder 2). On July 25, 2000, BLANDFORD filed his response to the Government's motions for pretrial determination of foreign and state law and supported it with a memorandum of law. R7-115, 116. On July 28, 2000, the Government filed a reply to MCNAB's response to the supplemental motion for determination of foreign and state law. R7-122. The grand jury handed down a superseding indictment on July 28, 2000. R7-121. On August 14, 2000, the Government replied to BLANDFORD's response to the motion for pretrial determination of foreign and state law. R7-128. The Honorable Richard W. Vollmer, Jr. ("JUDGE") was assigned to the case and set a jury trial date for each of the DEFENDANTS for October 2, 2000. R8-142, 161, 162, 163.

FN1. In the lower court, BLANDFORD expressly adopted MCNAB's extensive motions and arguments relating to jurisdictional and foreign law issues and his other sentencing objections. R9-313, 315; R38-81-82; R39-95-96.

On September 27, 2000, the Government filed additional argument to support its motion for pretrial determination of foreign law. R8-182. On September 28, 2001, the grand jury handed down the final charges in this case, a second superseding indictment, which alleged the offenses under which the DEFENDANTS went to trial. R8-183. In the second superseding indictment, BLANDFORD was charged in counts 1, 2-22, 26-39, 43, and 45.

On September 27 through 29, 2000, the JUDGE conducted a hearing on all pretrial motions, including those covering the issues of foreign law. R19; R20; R21. The parties filed additional memoranda in support of their positions relating to the *6 foreign law issues. R8-185, 186. On October 3, 2000, BLANDFORD was arraigned on the second superseding indictment. R9-189, 190. On October 12, 2000, the JUDGE entered an order relating to the foreign law issues. The JUDGE ruled in favor of the Government which he determined had met its burden of establishing the applicability of Honduran law the offenses charged against DEFENDANTS. R9-209. At the same time, he denied MCNAB's motion to dismiss relating to his position that Honduran law could not support the charges against DEFENDANTS. R9-209.

The jury trial began on October 16, 2000. R24-5. When the Government rested on October 25, 2000, DEFENDANTS moved for judgments of acquittal. The JUDGE denied these applications. R31-1294, 1301-04. At that time, the Government agreed to drop the "closed-season" violations because there wasn't sufficient evidence adduced during its case-in-chief, and they were excised from the case. R31- 1306, 1308; R32-1317. Only one of the DEFENDANTS, MCNAB, put on a case. He called the captain of one of his ships, the M/V Clipper ("CLIPPER"), to testify about operations relating to the violations alleged against DEFENDANTS. R32- 1318-1407.

On November 3, 2000, the jury returned a verdict of guilty as to each of the DEFENDANTS. R36-1686-1715. BLANDFORD was found guilty on each of the *7 counts in which he was charged. R9-249; R35-1701-05. BLANDFORD moved a new trial, and the Government opposed this request. R9-241, 259. On December 13, 2000, BLANDFORD filed a motion to dismiss count 45 relating to a charge of obstruction of justice. R9-262. On December 15, 2000, the JUDGE entered an order dismissing these counts. [FN2] R12-265.

FN2. The Government elected to seek a two-level increase for obstruction of justice as part of the sentencing process rather than have this charge tried before the jury in count 45.

On December 15, 2000, MCNAB filed in the record the annulment petition from the Honduran court relating to size limitation under Resolution 030-95. R9-266, 267. On January 16, 2001, the JUDGE denied BLANDFORD's motion for new trial. R9-271. MCNAB continued to pursue his position that Honduran law could not support convictions against DEFENDANTS by filing a new motion to dismiss certain counts for failure to charge a crime. R9-307. BLANDFORD adopted this additional motion to dismiss. R9-313. MCNAB filed additional materials bearing on the validity vel non of Honduran law. These materials related to the annulment petition, repeal of the hygiene regulation, and changes in the fishing laws. R9-324, 325, and 326.

On June 26, 2001, the JUDGE denied MCNAB's motion to dismiss for the reasons argued in the Government's response. R9-328. On July 16, 2001, *8 MCNAB filed another motion to dismiss which in the alternative asked for a new trial, and/or for a redetermination of the foreign law issues. R9-336, MCNAB also requested that oral argument be set on the alternative motions based on the significant Honduran law developments. R9-337. On July 17, 2001, BLANDFORD filed his position regarding sentencing factors, including objections, to the PSI. R9-339. On July 19, 2001, MCNAB made a supplemental filing in support of his alternative motions relating to foreign law and attached affidavits of Honduran foreign law experts. R9-341. On July 23, 2001, BLANDFORD made a motion to adopt MCNAB's motion to dismiss. R9-346.

On July 26, 2001, the JUDGE entered an order setting hearing on all pending motions, including the foreign law motions, for August 17, 2001. R9-350. On July 26, 2001, the Government filed its position relating to BLANDFORD's PSI. R9-359. The JUDGE granted BLANDFORD's motion to adopt the post-trial motions of other DEFENDANTS. R9-360. On August 1, 2001, the JUDGE filed his notice of tentative findings relating to BLANDFORD's PSI. R9-370. On August 2, 2001, the JUDGE conducted BLANDFORD's sentencing hearing, pronounced sentence, but did not enter a final judgment. R37-1-64. The Government filed some additional responses to DEFENDANTS' requests for a reconsideration of the validity of Honduran law prior to the August 17, 2001 hearing. R9-378, 387.

*9 On August 17, 2001, the JUDGE held the hearing relating to all of the pending post-trial motions. R41-1-73. On August 28, 2001 the JUDGE entered final judgments as to each of the DEFENDANTS because he had ruled against them as to all of their post-trial motions. R9-397. The JUDGE sentenced SCHOENWETTER to five-years incarceration as to counts 1 and 7-11, to run concurrently, and a consecutive term of 37 months on count 12. He also ordered SCHOENWETTER to forfeit $100,000 already deposited with the court and imposed a fine of $15,000. R12-381, 393; R39-98-101. MCNAB also was sentenced to a total of 97 months incarceration, sixty months on counts 1-12 and 97 months on counts 28-40 and 42-43. MCNAB forfeited $800,000 and was fined $100,000. R9-396. HUANG received a sentence of 24 months which represented a downward departure based upon her substantial assistance to the Government pursuant to USSG 5K1.1. R9-394.

On August 28, 2001, the JUDGE sentenced BLANDFORD to a total of 97 months imprisonment, 60 months on counts 1-22,12 months on counts 26-27, and 97 months on counts 28-39 and 43, all to be served concurrently. The JUDGE also sentenced BLANDFORD to three-years supervised release to concurrently on all counts, imposed a fine of $15,000, and caused him to forfeit $100,000 on deposit in the court registry. R9-395.

*10 The JUDGE ruled against DEFENDANTS on all of their post-trial motions, including those related to Honduran law developments. R9-397. On September 9, 2001, BLANDFORD filed his notice of appeal. R9-403.

B. Statement Of The Facts.

This case began with the initiation of an investigation starting in early February of 1999. Agents from the National Marine Fisheries Service ("NMFS") learned from an anonymous source that the CLIPPER would be arriving soon in Bayou La Batre, Alabama. R24-108. The source informed the NMFS that the CLIPPER had on board Caribbean spiny lobster fished from the territorial waters of Honduras. R24-108-09; R25-186; R31-1290. NMFS agents later determined that the vessel had transported approximately 72,000 pounds of lobster during its trip to Bayou La Batre on February 4, 1999. R24-135.

MCNAB's company, the Carribean Dream Company ("CDC"), was the importer of this shipment which had been consigned to Seamerica Corporation ("SEAMERICA"). BLANDFORD was the owner of SEAMERICA. R25-264; R26-500. The lobster seized from the CLIPPER were packed in bulk plastic bags. R24-118; R25-189; R28-784. As part of its investigation, the Government determined that MCNAB had not complied with certain Honduran requirements, including reporting his catch to Honduran authorities. The Government further *11 learned that the shipment had not been through processing at an Honduran government-licensed facility. R24-163-64. Morover, the NMFS asserted that a portion of the lobsters failed to meet minimum size requirements. R25-190, 193, 195, 258.

SEAMERICA'S relationship to MCNAB's shipments in part was that it resold this product to American Export-Import Corporation ("EXIM") through HUANG. R26-551, 561-62; R30-1089. At times BLANDFORD also had a business relationship with SCHOENWETTER. R28-740-41; R29-1021; R30-1213-15. SCHOENWETTER did business with SEAMERICA and HUANG through his company, Horizon Seafood ("HORIZON"). R25-277; R30- 1138. Some of the lobsters were sent to into the State of Florida [FN3]. R27-626-28; R28-736; R30-1245.

FN3. Florida law also had a size requirement that this species of lobster have a tail length of at least 5.5 inches. R30-1154.

The original action taken by the NMFS was to initiate a civil forfeiture proceeding which eventually was amicably resolved. R25-212-13. Later, BLANDFORD shipped lobster from Honduras to Los Angeles, California and Canada by air after having passed an Honduran government inspection. R29-981-85, 994-95; R-30-1073-78, 1252. The Government alleged that MCNAB's vessels were involved in substantial importations from Honduras to Alabama, and the *12 Government elected to include eleven of them as material acts supporting the allegations in the second superseding indictment. R25-260. The Government also decided to include in the charges against BLANDFORD two later shipments in which he had worked with SCHOENWETTER. The Government alleged other importations were part of BLANDFORD's larger involvement in the conspiratorial objectives of other DEFEND ANTS. R9-359-17-20.

The Government sought and obtained a search warrant to seize SEAMERICA's relevant business records. R29-1033-56; R30-1072-1141. The Government eventually charged BLANDFORD in count 45 with obstruction of justice for failing to obey the scope of the subpoena. R8-183-34. Although these counts were not presented in the jury trial, the Government utilized the alleged conduct to seek an enhancement as part of the sentencing process. R9-262, 265; PSI-24. [FN4]

FN4. Because there is no docket entry number for the PSI, BLANDFORD shall refer to pages from the PSI by "PSI-" followed by the page number.

The Government claimed that BLANDFORD engaged in financial transactions which constituted a violation of 18 U.S.C. 1957, a money-laundering statute. The Government's position was that BLANDFORD's revenues and payments to suppliers, such as MCNAB, was the use of funds derived from *13 unlawful activity, namely the violations of 16 U.S.C. 3371 et seq. ("The Lacey Act"). R8-183- 31-31; R29-1049-50;R30-1138,1192-1200, 1211-15.

The Government charge BLANDFOKD in the second superseding indictment of the following offenses: count 1, a violation of 18 U.S.C. 371, the general conspiracy statute with four objects: a) violation of 18 U.S.C. 545 prohibiting importation of merchandise contrary to law; b) violation of 16 U.S.C. 3372(a)(2)(A) and 3373(d)(1)(B)(the "LACEY ACT"), prohibiting the sale or purchase offish or wildlife in interstate or foreign commerce knowing that the fish or wild life had been taken, possessed, transported or sold in violation of foreign or state law; c) violation of the importation or exportation offish or wildlife under the LACEY ACT, 16 U.S.C. 3372(a)(2)(A) and 3373 (d)(1)(A); and d) violation of a money-laundering statute, 18 U.S.C. 1956(a)(1)(A)(i). R8-183.

In counts 2-12 the Government charged BLANDFORD with substantive violations of 18 U.S.C. 545 and 2, that is, for importing merchandise contrary to law. In counts 13-22 and 26-27, the Government charged BLANDFORD with substantive violations of the LACEY ACT. In counts 28-39, the Government alleged that BLANDFORD engaged in an attempt to violate the money-laundering statute, 18 U.S.C. 1957 and 2, involving the proceeds of specified unlawful activity. In count 43, the Government charged BLANDFORD with conspiring to engage in *14 monetary transactions from criminally-derived property with a value greater than $10,000 in violation of 18 U.S.C. 1956(h). In count 45, BLANDFORD was charged with obstruction of justice by failing to produce records pursuant to a grand jury subpoena in violation of 18 U.S.C. 1503(a). R8-183.

The Government's case was premised on application of Honduran law. It claimed that certain Honduran statutes, regulations, and resolutions supported LACEY ACT violations. The Government distilled its view of applicable foreign law into eight categories, including minimum tail size, protection of eggs, local authority inspections, reporting requirements, and packaging standards. R8-209- 4-6; R26-406-07, 500; R28-795; R29-876-81; R30-1239; R31-1273. There were many submissions by the Government and DEFENDANTS, relating to the applicability of Honduran law, over the course of a number of months which eventually culminated in a pretrial hearing on foreign law. See, e.g., R7-46, 53, 87, 100, 105, 110, 113, 116, 117, 122, 125, 151, 178; R8-182, 185, 186, 194, 199.

In late September of 2000, the JUDGE held a three-day hearing on the foreign law issues. R19-1-51; R20-152-282; R21-283-405. Among its wimeses, the Government called the General Secretary of the Honduran Ministry of Agriculture and Livestock, Liliana Paz ("PAZ"), to testify about Honduran law relating to the charges in the second superseding indictment. R20-59-126. *15 PAZ testified that there was a minimum size requirement of 5.5 inches for Caribbean spiny lobster tails pursuant to Honduran Resolution 030-95. R20-63. She also stated that Decree Number 154, The Fishing Law, still was valid and Agreement 0008-93 relating to the industrial, hygienic, and health protection of fishery products, also was in force. R20-65-66.

The Government called Paul Raymond ("RAYMOND"), an agent with the NMFS, to testify relating to enforcement of Honduran law under the LACEY ACT. R20-196- 233. MCNAB produced expert witness Saul Litvinoff ("LITVINOFF"), a professor at the Louisiana Law University. R20-126-151. LITVINOFF stated that the Honduran resolutions were not binding because they were not issued lawfully under Honduran law. Rl9-130-34. MCNAB also called to the stand Efrain Moncada Silva ("SILVA"), a law professor from Honduras. R20-244-281. SELVA also opined that the Honduran "laws" at issue were not currently valid and, therefore, could not be violated. R20-25 7-261.

The JUDGE ruled in favor of the Government in an order entered on October 12, 2000. The JUDGE decided that the Government had met its burden by establishing the validity of eight points of law in supporting the charges in the second superseding indictment. R8-209-1-27.

At the trial held between October 16 and November 3, 2000, the Government *16 called PAZ and RAYMOND as witnesses, but they did not testify about the validity of Honduran law which the JUDGE already had decided pretrial. R27-654- 671; R29-866-900.

After the trial, MCNAB filed additional materials relating Honduran law developments which addressed the validity of Honduran law used to convict the DEFENDANTS. [FN5] R9-253, 266, 267, 300, 324, 325, 326, 327, 341. [FN6] The JUDGE granted MCNAB's request for oral argument on these Honduran law issues. R9-337, 350. On August 17, 2001, the JUDGE held a hearing on DEFENDANTS' alternative motions relating to Honduran law, including a motion to dismiss, for new trial, and for reconsideration of the JUDGE'S prior findings on the validity of Honduran law. R41-1-68. On August 28,2001, the JUDGE entered a fifteen-page order denying all of these motions as to each DEFENDANT. R9-397. [FN7]

FN5. BLANDFORD filed a motion to adopt all of these post-trial motions and arguments. R9-346.

FN6. The Government filed responses to these papers. R9-322, 378, 387.

FN7. The JUDGE found that Resolution 030-95 (size limit) was still good law even though Honduran proceedings had annulled that provision with retroactive effect beneficial to DEFENDANTS. The JUDGE opined that the annulment proceedings was not yet final because the Honduran court had not decided the Honduran government's appeal. R9-397-5-7. BLANDFORD has learned that those proceedings have concluded in favor of upholding annulment, and that MCNAB shortly will be filing papers confirming the finality of that annulment action.

*17 C. Standard Of Review.

The standard of review for Issue I is plain error. United States v. Olano, 507 U.S. 725, 735-36 (1993). It also would be appropriate to review Issue I under structural error because there is a fundamental defect in the proceedings if a defendant can be convicted for an offense where the jury was not instructed in the essential elements of the offense. Arizona v. Fulminante, 499 U.S. 279, 310 (1991). For Issue II, the standard of review is de novo. United States v. Brownlee, 204 F.3d 1302, 1303 (11th Cir. 2000). For issue III, the standard of review is de novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999). For issue IV, the standard of review is de novo. United States v. Prosperi, 201 F.3d 1335, 1342 (11th Cir. 2000). For issue V, the standard of review is de novo. Id. For issue VI, the standard of review is abuse of discretion. United States v. Tokars, 95 F.3d 1520, 1531 (11th Cir. 1996). For issues VII and VIII, the standard of review is de novo. United States v. Anderson, 200 F.3d 1344, 1347 (11th Cir. 2000).

*18 SUMMARY OF THE ARGUMENT

The JUDGE erred when he sentenced BLANDFORD under USSG 2S1.1. The JUDGE erroneously selected that Guideline based on his conviction under count l(d) of the Second Superseding Indictment for conspiracy to violate 18 U.S.C. 1956(a)(1)(A)(i). BLANDFORD was not lawfully convicted of that offense because the JUDGE never instructed the jury in the essential elements of that offense. United States v. Miller, 22 F.3d 1075 (11th Cir. 1994).

The JUDGE erred by sentencing BLANDFORD to a total term of imprisonment more than five years, the statutory maximum under count l(d), for a violation of 18 U.S.C. 371. The JUDGE imposed a sentence of 97 months imprisonment under counts 28-39, which related to 1957 money laundering, by employing USSG 2S1.1, the Guideline for 1956 "promotion" money laundering. However, he did this only to be able to constructively impose punishment under count 1(d) in excess of the statutory maximum under 18 U.S.C. 371. The JUDGE did this without having the jury find beyond a reasonable doubt an aggravating factor to increase the statutory maximum under Section 371, thereby violating the holding in Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-64 (2000).

The JUDGE erred when he failed to grant BLANDFORD's motion for judgment of acquittal under count 1(d). The Government failed to adduce evidence *19 beyond a reasonable doubt that BLANDFORD's conduct promoted the illegal activity in violation of 18 U.S.C. 1956(a)(1)(A)(i). United States v. Calderon, 169 F.3d 718 (11th Cir. 1999). The JUDGE also erred when he refused to dismiss the LACEY ACT charges against BLANDFORD which arose from alleged violations of Honduran law. First, the LACEY ACT did not encompass foreign resolutions or regulations but only statutory law. The three main Honduran violations were either resolutions or regulations which did not have force of statutes in that country. Second, Honduran law supporting the LACEY ACT charges had been invalidated which invalidation had to be applied retroactively in a criminal case under both Honduran and United States law. Jones v. United States, 120 S. Ct. 1904 (2000).

The JUDGE erred when he refused BLANDFORD's request for a continuance of the sentencing hearing. Granting a continuance until November 1, 2001 would have reduced BLANDFORD's sentence under the new version of USSG 2S1.1. The JUDGE erred when he calculated BLANDORD's sentence under USSG 2S1.1 for count 1(d) but used counts which related to USSG 2S1.2. Finally, the JUDGE erred when he increased BLANDFORD's TOL by two levels for obstruction of justice because the Government failed to produce evidence at the sentencing hearing which was both reliable and specific. United States v. Lawrence. 47 F.3d 1559 (11th Cir. 1995).

*20 ARGUMENT

I. THE JUDGE ERRED IN SENTENCING BLANDFORD IN COUNT l(d) BY USING USSG 2S1.1 BECAUSE THE JUDGE DID NOT CHARGE THE JURY IN THE ESSENTIAL ELEMENTS OF "PROMOTION" MONEY-LAUNDERING UNDER 18 U.S.C. 1956(a)(1)(A)(i).

A. Money Laundering Under Sections 1956 and 1957.

Since 1986 two statutes have been in force to punish the crime known as "money laundering." 18 U.S.C. 1956; 18 U.S.C. 1957. A Section 1957 offense has four elements: a) the defendant must "engage" in a monetary transaction; b) more than $10,000 must be involved; c) the defendant must know the money arises from criminal activity; and d) the funds are derived from specified unlawful activity. A 1956 violation does not have a threshold amount, nor does it require that a financial institution be involved. However, there are four essential elements, the first three of which are: a) the defendant must engage in a financial transaction; b) involving money or property derived from specified unlawful activity; c) knowing the money was derived from felonious activity. The final element requires that the transaction be grounded in some illegal purpose, such as violating bank reporting laws, tax *21 obligations, concealing criminal proceeds, or promoting ongoing criminal activities. See United States v. Majors, 196 F.3d 1206 (11th Cir. 1999).

B. Probation's Application Of USSG 2S1.1 To Count 1(d).

BLANDFORD was convicted in Count l(d) of the Second Superseding Indictment for conspiring to commit "promotion" money-laundering, a violation of 18 U.S.C. 1956(a)(1)(A)(i). R8-183; R35-1701-05. [FN1] Probation referred to USSG 2X1.1 to select the Guideline for the Base Offense Level ("BOL"). That Guideline provides that the BOL be that of the substantive offense. Probation then chose USSG 2S1.1, laundering of monetary instruments, as the appropriate Guideline and fixed the BOL at 23. Probation then increased the BOL five levels, concluding that the offense involved funds exceeding $1,000,000. PSI-23. It also recommended a further two-level increase for obstruction of justice, resulting in a total offense level of 30. [FN2] PSI-24.

FN1. Count 1 was brought under the general conspiracy statute, 18 U.S.C. 371. BLANDFORD was charged with substantive money-laundering violations but in counts 28-39 under Section 1957 rather than 1956. R8- 183.

FN2. With a TOL of 30 and Criminal History Category I, BLANDFORD's Guideline imprisonment range was 97-121 months.

Even though BLANDFORD was convicted under the other objects of the four-object conspiracy, as well as on counts many other counts, Probation chose *22 USSG 2S1.1 as the applicable BOL. This followed from applying the framework under USSG 3D1.2(d) and 3D1.3(a). 3D1.2(d) states that "[a]ll counts involving substantially the same harm shall be grouped together into a single Group...[w]hen the offense level is determined largely on the basis of the total amount of harm or loss..." 3D1.3(a) instructs that "[i]n the case of counts grouped together..., the offense level applicable to the Group is the... highest offense level of the counts in the Group." This meant that Probation had reviewed the other offenses of conviction and concluded that 2S1.1 under Count 1(d) would yield the highest sentencing range.

C. The JUDGE Could Not Sentence BLANDFORD Under 2S1.1 Because He Failed To Instruct The Jury In The Elements Of A 1956 Crime.

BLANDFORD timely objected to the PSI. R9-339. At the sentencing hearings conducted on August 2, 3, and 7 for BLANDFORD, SCHOENWETTER, and MCNAB, the latter argued that the JUDGE never had instructed the jury in the elements of an offense under 1956(a)(1)(A)(i) and, therefore, the JUDGE could not impose sentence under that erroneous conviction. [FN3] R38-20-21, 79-80. The DEFENDANTS relied mainly on this Court's decision in *23United States v. Miller. 22 F.3d 1075 (11th Cir. 1994). In Miller, the Court stated, in pertinent part:

FN3. BLANDFORD benefits from this objection because the JUDGE specifically found that each of the DEFENDANTS would be covered by the objections of the others. R39-95.

In calculating Miller's sentence, the district court treated the conspiracy conviction as four distinct convictions, and imposed sentence based on the most serious offense charged, i.e. the conspiracy to violate Sec. 1956(a)(1)(A)(i)...The defendants argue that the conspiracy conviction could not have been based on the goal of violating [that section] because the jury was not properly instructed on elements of that offense...

Id. at 1080 (emphasis supplied).

Because the defendants in Miller did not object to that omission with the trial court during trial, the Eleventh Circuit had to review for plain error. In fact, the Court found plain error because a conviction cannot be based on a theory that was charged in the indictment but not covered in a jury instruction. Id. at 1081 (citing United States v. Winfield, 997 F.2d 1076, 1081 (4th Cir. 1993)(defendant cannot be convicted of conspiracy to launder money where court failed to instruct on elements of money laundering in a multi-object conspiracy). The Miller Court remanded the case to the district court for resentencing of the defendants as to only those objects of the general conspiracy where the jury found guilt after being properly instructed in the law. United States v. Miller, 22 F.3d 1075, 1081 (11th Cir. 1994).

The facts in this case are nearly identical to those in Miller. The jury charges given by the JUDGE do not instruct the jury in the elements of a 1956(a)(1)(A)(i) violation. R33-1577-1615. Rather, they only mention the nature of this offense. R33-1600. Under Miller, this is plain and reversible error. Id. At the sentencing *24 hearing, the Government argued that the JUDGE had given a "lawful jury instruction" under Section 1956. R38-32-35. The JUDGE found his instruction to be "adequate." The JUDGE agreed with this reasoning and denied the objection filed by BLANDFORD on this issue. R38-80.

The Eleventh Circuit had developed a three-page instruction for a violation of 1956(a)(1)(A)(i), which was published prior to the trial in this case. See Offense Instruction 60.1, Eleventh Circuit Pattern Jury Instructions (Criminal)(West Publishing 1997). The prior edition of this Circuit's Pattern Instructions, edited in 1985, did not contain such a charge but did contain one for a 1957 violation. In fact, the Pattern Instruction for a 1957 violation from the 1985 edition was given to the jury. R33-1596-97. [FN4] If the elements of 1956 and 1957 crimes were sufficiently similar to properly charge the jury for a violation of either, the Eleventh Circuit would not have included a new and different instruction for a 1956 violation in its 1997 edition of the Pattern Instructions. In fact, it is readily apparent that the elements are not identical, requiring different findings by the jury on a 1956 *25 violation before it can reach a verdict of guilty.

FN4. It would be a fair assumption the Government was unaware of the existence of the newer edition of the Pattern Instructions and, therefore, did not propose this Pattern Instruction for the 1956 violation contained in Count 1(d). It also is reasonable to conclude that either: a) the Government forgot to develop its own 1956 instruction containing all of the essential elements; or b) erroneously assumed that the Pattern Instruction for a 1957 violation was sufficient to sustain a conviction for a 1956 violation even though the elements are not the same. R38-32-35.

The JUDGE never even told the jury that, before it could find the DEFENDANTS guilty under Count l(d), that the Government had to prove beyond a reasonable doubt "the following elements" for conspiracy to commit a 1956(a)(1)(A)(i) violation as he had done with Section 1957. R33-1605. Among those elements, the jury should have been instructed that an essential one was whether DEFENDANTS engaged in financial transactions "for the purpose of promoting, or carrying on, specified unlawful activity." Failure to instruct the jury to consider this an essential element of this monev-laundering crime, requiring a finding beyond a reasonable doubt on this last element, cannot sustain a 1956(a)(1)(A)(i) conviction. United States v. Calderon, 169 F.3d 718 (11th Cir. 1999). Having failed to instruct the jury with any, let alone all, of the essential elements of a 1956(a)(1)(A)(i) violation, the JUDGE was precluded from imposing sentence on BLANDFORD under Count 1 (d), which is the only count in which he was convicted of a money-laundering offense. United States v. Miller, 22 F.3d 1075, 1080-81 (11th Cir. 1994).

*26 D. The JUDGE Should Have Sentenced BLANDFORD Pursuant To USSG 2O2.1 Because Application OfUSSG 2S1.1 Was Unlawful. [FN5]

FN5. By demonstrating that USSG 2S1.1 was not applicable to his case, but rather another Guideline, BLANDFORD does not mean to waive other arguments that additional convictions against him also should be reversed.

In his objections to the PSI, BLANDFORD argued that USSG 2Q2.1, relating to LACEY ACT offenses, was the applicable Guideline for purposes of choosing a BOL. R9-339-4. That Guideline has a BOL of 6 with upward adjustments for specific offense characteristics. PSI-22. Under that Guideline, Probation took the position that increases were warranted resulting in an adjusted offense level of 23. PSI-22; USSG 2Q2.1(b)(1)(3); USSG 2Fl.l(b)(1). BLANDFORD disputed the method by which Probation applied the "loss value" to the underlying LACEY ACT offenses. R9-339-2-3.

Here, it was undisputed that a substantial amount of lobster at issue did not violate the provisions of the LACEY ACT. R9-339-2-3. Unfortunately, Probation included as specific offense characteristics all of the merchandise even if not in violation of the LACEY ACT; Probation's position did not follow the Guideline policy underlying "loss valuation." USSG 2B1.1 (Application Note 2); see, e.g., United States v. Galvez, 108 F. Supp.2d 1369, 1371 (S.D. Fla. 2000)(citing inter alia United States v. Wilson, 993 F.2d 214 (11th Cir. 1993); *27United States v. Arjoon. 964 F.2d 167 (2d Cir. 1992)). [FN6]

FN6. As an analogy, it respectfully is submitted that a court would be prohibited from measuring loss based on the value of all items removed from a trailer where a portion of the items in fact were stolen by the defendant but the balance lawfully owned by him.

The JUDGE should have applied USSG 2Q2.1 as the proper sentencing Guideline which has a BOL of 6. At best, utilizing Probation's calculation of loss value, BLANDORD's TOL should be 23 with a corresponding Guideline sentencing range of 46-57 months. USSG 2Q2.1(b)(1)(3); 2F1.1(b)(1); R9-339-3. BLAKDFORD would submit that the JUDGE'S failure to instruct the jury on the elements of Count 1(d), a violation of 18 U.S.C. 1956(a)(1)(A)(1) is plain error requiring remand to the district court with instructions to conduct a re-sentencing under another count of conviction which may be determined to be lawful. United States v. Miller, 22 F.3d 1075 (11th Cir. 1994); United States v. Olano, 507 U.S. 725(1993). [FN7]

FN7. To satisfy the plain error standard, a defendant must show: a) the district court committed error, b) the error was plain and obvious; and c) the error affected substantial rights because it was prejudicial and not harmless. Olano, supra. Under Miller, supra, the JUDGE committed plain error by failing to charge the jury with the essential elements of the 1956(a)(1)(A)(i) violation as argued in other parts of this Initial Brief. BLANDFORD received a sentence greater than that which would have been calculated under 2Q2.1 or even 2S1.2.

*28 II. THE JUDGE ERRED WHEN HE DENIED BLANDFORD'S MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 1(d) BECAUSE THERE WAS NO PROOF BEYOND A REASONABLE DOUBT THAT HE HAD CONSPIRED TO COMMIT PROMOTION MONEY LAUNDERING UNDER 18 U.S.C. 1956(a)(1)(A)(i).

The allegations against BLANDFORD in the second superseding indictment relating to count I (d), the conspiracy money-laundering offense, boiled down to him paying MCNAB for product and SCHOENWETTER and HUANG for commissions and agent's fees. R9-183. These facts not support a conviction for a 1956(a)(1)(A)(i) violation. United States v. Calderon, 169 F.3d 718 (11th Cir. 1999).

In Calderon, supra, the Eleventh Circuit held that a "promotion" money-laundering charge cannot be sustained simply because a defendant engages in financial transactions. What the Government had to prove beyond a reasonable doubt was how the money was to be spent once it was paid to someone else. Id, at 722. In Calderon, the Court held that it was the Government's burden to prove that the defendant "acted with the intent to promote the carrying on of the illegal activity. Id. Absent that proof, the Government has failed in its burden requiring reversal of the conviction, including the conspiracy count for "promotion" money *29 laundering which had been grounded in those allegations. Id. at 372-73.

In the case sub judice, the record of the trial does not contain proof against BLANDFORD of the type required by United States v. Calderon, 169 F.3d 718 (11th Cir. 1999), to sustain a conviction for a 1956(a)(1)(A)(i) violation. At best, the Government proved that BLANDFORD paid others for some allegedly illegal seafood products. However, there was no proof beyond reasonable doubt that BLANDFORD or the recipients of these funds used the monies to "promote" the alleged ongoing illegal activity charged in the second superseding indictment. Because the record evidence was deficient as to this essential element of a 1956 crime, BLAKDFORD's conviction under count 1(d) cannot stand and must be reversed. Id. at 722-23.

*30 III. THE JUDGE ERRED BY IMPOSING BLANDFORD'S SENTENCE WITH REFERENCE TO COUNT 1(d) BECAUSE PUNISHMENT WAS CALCULATED BY UTILIZING A GUIDELINE WHICH EXCEEDED THE STATUTORY MAXIMUM UNDER THE GENERAL CONSPIRACY STATUTE IN VIOLATIOIN OF APPRENDI v. NEW JERSEY.

A. The Apprendi Decision And Statutory Maximums.

Count 1 of the second superseding indictment was under 18 U.S.C. 371, the general conspiracy statute, with a statutory maximum penalty of five-years imprisonment. BLANDFORD was convicted on each of the four objects under Section 371 as well as on the LACEY ACT and Section 1957 substantive money laundering. The LACEY ACT statute carry a statutory maximum term of imprisonment of five years, and the 1957 offense a ten-year maximum.

In Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), the Supreme Court held that "any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and proved beyond a reasonable doubt." It is not disputed that the jury never made a finding about any particular quantity of lobster at issue in this case. It also is undisputed that BLANDFORD did not have any "prior conviction" which would be *31 an exception to the Apprendi bar. Therefore, under the Apprendi rule, the JUDGE could not sentence BLANDFORD to a term of imprisonment in excess of five years under count 1 nor the LACEY ACT counts unless the jury made a finding beyond reasonable doubt about an aggravating circumstance which could increase his sentence above those statutory maximums. [FN8]

FN8. BLANDORD acknowledges that the JUDGE could sentence BLANDFORD in excess of five years under his 1957 convictions. In fact, the JUDGE imposed the 97 months imprisonment using those convictions. However, it was clear from the record that the JUDGE imposed sentence by referring to BLANDFORD's conviction under count 1(d), as he did for each of the other DEFENDANTS. The JUDGE only used the 1957 convictions to find other counts to sentence BLANDFORD to the total punishment derived from count l(d), and Probation's calculation of a 97-121 months imprisonment range under that count. The JUDGE never utilized the Guideline for a 1957 conviction to calculate BLANDFORD's sentence.

B. The Jury Never Considered An Aggravating Factor Under Count 1(d)

To Allow The JUDGE To Impose Sentence Above The Statutory Maximium.

The PSI calculated BLANDFORD's TOL at 30 with a corresponding Guidelines imprisonment range of 97-121 months. [FN9] PSI-24. He timely objected to this TOL on various grounds, including that Apprendi prohibited a sentence in *32 excess of the statutory maximum of five years. [FN10] R9-339-2. Assuming arguendo that BLANDFORD lawfully was convicted under count 1(d), the JUDGE still erred by imposing a sentence greater than the statutory maximum. This follows because the jury never made a finding as to any quantity of laundered funds attributable to BLANDFORD. [FN11] R8-249; R35-1701-05. The jury's finding would have to have been beyond a reasonable doubt. Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000); USSG 2S1.1(b)(2). Because the JUDGE failed to require the jury to make this finding in its deliberations, he was without lawful authority to impose sentence on BLANDFORD in excess of the five-year statutory maximum for a conviction under Section 371. In effect, the JUDGE made his own Apprendi *33 finding without being the trier-of-fact, imposing a sentence of 97 months based upon an "aggravating circumstance" or "special offense characteristic." This was a task exclusively within the province of the jury in violation of Apprendi. [FN12] The JUDGE evaded the Apprendi rule by using counts 28-39 to "borrow" a statutory maximum greater than 60 months. However, the JUDGE never employed the Guideline framework to calculate a sentence under those counts which were for convictions under 18 U.S.C. 1957.

FN9. This resulted from a BOL under USSG 2S1.1 of 23 plus a five-level increase for specific offense characteristics of more than $1 million in laundered funds and a further two-level increase for obstruction of justice.

FN10. BLANDFORD has argued in this Initial Brief that the JUDGE erred by applying USSG 2S 1.1, the money-laundering Guideline, to calculate the initial BOL because the jury never was instructed in the elements of the offense. The argument made here is substantively distinct. It assumes, without admitting, that count 1(d) was properly before the jury for its consideration, but that the JUDGE erred under the Apprendi rule.

FN11. USSG 2S1.1(a)(1) provides for a BOL for a 1956(a)(1)(A) violation of 23. The Guideline range for level 23, Criminal History Category I, is 46-57. USSG 2S1.1(b)(2), Specific Offense Characteristics, provides for increases to the BOL of 23 "[i]f the value of funds" exceeded $100,000. A five-level increase for value of funds of more than $1 million but less than $2 million is found at 2S1.1(b)(2)(F). An offense level of 28 gives a Guideline sentencing range of 78-97months which exceeds a five-year statutory maximum for a 371 conspiracy. Thus, under Apprendi. the JUDGE was precluded from sentencing BLANDFORD to more than 60 months unless the jury was instructed to find the value of funds he was alleged to have laundered as provided for in USSG 2S1.1(b)(2).

FN12. The Government never requested an interrogatory verdict as to "value of funds." This precluded it from seeking any punishment over 60 months. If it had requested such a verdict, BLANDFORD could have argued that, if the jury believed he was guilty of money laundering, then his relevant conduct was "x" amount. BLANDFORD was harmfully prejudiced by the PSI's methodology accepted fully by the JUDGE. BLANDFORD never had the benefit of a jury to find beyond a reasonable doubt what, if any, amount was the "value of funds" applicable to his alleged laundering activities. See R12-332-14-15.

*34 IV. THE JUDGE ERRED BY FAILING TO GRANT BLANDFORD'S MOTION TO DISMISS FOR FAILURE TO CHARGE A CRIME BECAUSE THE LACEY ACT VIOLATIONS WERE GROUNDED IN HONDURAN REGULATIONS AND RESOLUTIONS AND NOT STATUTES.

A. MCNAB's Post-Trial Motion To Dismiss.

On May 22, 2001, MCNAB filed a Motion to Dismiss Certain Counts For Failure To Charge A Crime ("MOTION TO DISMISS") which the JUDGE permitted BLANDFORD to adopt and preserve for appellate review. R9-300, 315; R38-82. On June 26, 2001, the JUDGE denied the MOTION TO DISMISS. R9-328. The MOTION TO DISMISS was timely because subject-matter jurisdiction can be raised at any time, including on appeal. Harris v. United States. 149 F.3d 1304, 1308 (11th Cir. 1998).

The basis of the MOTION TO DISMISS was that each of the LACEY ACT violations grounded in Honduran resolutions or regulations had a fundamental jurisdictional defect which could not support convictions against the DEFENDANTS. More specifically, the MOTION TO DISMISS argued that the LACEY ACT did not encompass violations of foreign law unless such law was statutory. R9- 300-4.

*35 B. The LACEY ACT's Precise Language Incorporates Only Foreign Statutes.

The LACEY ACT, as revised in 1981 and in effect at all times material to this cause, provides for enforcement of "foreign law." The current version proscribes violations offish, wildlife, and plant regulations of the United States and its own states but not foreign countries. See 16 U.S.C. 3372(a)(1)(2). The former version was broader because it included "regulations" of foreign countries. The Government could not argue the precise wording of the current version of the LACEY ACT applicable to this case. 16 U.S.C. 3372(a)(2)(A). Rather, it argued that the legislative history did not support a "contraction" of the sweep of the LACEY ACT. Rl2-322-8-9. The JUDGE agreed with the Government that the current version of the law encompassed violations of foreign "regulations" and denied the MOTION TO DISMISS. R12-328.

B. Principles Of Statutory Construction Preclude A Broader

Interpretation Of The Precise Wording Of The LACEY ACT.

Well-established rules of statutory construction prohibited the JUDGE from accepting the Government's argument that "foreign law" should be read to include "regulations" where other provisions of the same statute specifically refer to "regulations" as proscribed acts. In Bates v. United States. 522 U.S. 23, 30 (1997), the Supreme Court held that there is a presumption that Congress acted *36 "intentionally and purposefully" when it decided to include or exclude provisions from laws it enacted. The Eleventh Circuit rejects review of legislative history unless an extraordinary showing is made that Congress had a specific contrary intention to the plain meaning of the words at issue. United States v. Garcia, 718 F.2d 1528 (11th Cir. 1983), aff'd, 469 U.S. 70 (1984). The Government made no such showing in this case. [FN14]

FN14. It was clear from all of the papers filed, and hearings conducted, that the Government had no authority to show why a district court was authorized to place the word "regulation" at a point in the statute at issue, 16 U.S.C. 3372(a) where in fact Congress specifically chose not do so.

The JUDGE erred when he ignored these well-established principles of statutory construction, accepting the Government's reasoning that the legislative history gave him the authority to ignore the omission of "regulations" from LACEY ACT violations from other countries. It also was erroneous for the JUDGE to rely on the Government's reference to House and Senate reports about the meaning of the 1981 amendments because such reports do not have the force of law. United States v. Thigpen, 4 F.3d 1573 (11th Cir. 1993)(a district court cannot enforce principles it borrows from legislative reports where there is a plain meaning in statutory wording).

*37 By agreeing with the Government that "foreign regulations" still were proscribed under the LACEY ACT, the JUDGE violated other cardinal rules relating to application of criminal statutes. A district court is not permitted to construe a statutory provision in a fashion which will render meaningless another provision within that same statute. Ratzlaf v. United States, 510 U.S. 135 (1994).

Here, the JUDGE knew that other parts of Section 3372(a) clearly provide that violations of "regulations" are violations of the LACEY ACT, that is, as to United States and state law. Yet, the JUDGE chose to ignore those provisions, as if Congress never attached those words to those parts, and instead himself attached "regulations" to "foreign law." This is prohibited by Ratzlaf, supra.

Finally, the best argument the Government could make is that there is an "ambiguity" in the phrase "foreign law." However, under the rule of lenity, any doubt about the application of a criminal statute must be resolved in favor of the defendant. Jones v. United States, 120 S. Ct. 1904 (2000). Consequently, the JUDGE erred by finding in favor of the Government even if it fairly could be said that there was ambiguity in this particular provision of the LACEY ACT.

In light of the foregoing, this Honorable Court should reverse any of BLANDFORD's convictions grounded in violations of Honduran regulations or resolutions and remand to the district court for a hearing to show cause why this *38 cause should not be dismissed in its entirety. [FN15]

FN15. Because the second superseding indictment in count 1 made reference to violation of "state law" as well as Honduran law, the district court needs to make a determination whether, and to what extent, there was proof that might support a conviction under count 1(a)(b)(c) albeit only for violation of state law. Any proof adduced at trial which arose from Honduran law should not be considered. BLANDFORD has demonstrated that count l(d) cannot stand because the jury never was instructed in the essential elements of the substantive offense. Because counts 7-12 are arise only from alleged violations of Honduran law, the district court would not have to jevisit those counts which should be dismissed in their entirety.

*39 V. THE JUDGE ERRED BY REFUSING TO DISMISS THE SECOND SUPERSEDING INDICTMENT WHERE THE HONDURAN REGULATIONS AND RESOLUTIONS RELIED UPON BY THE GOVERNMENT TO CONVICT BLAM)FORD HAD BEEN INVALIDATED.

A. Filings Relating To Changes In Honduran Law.

On July 16, 2001, MCNAB filed Ms Alternative Motions Based on Honduran Law Developments ("ALTERNATIVE MOTIONS"). [FN19] R9-336. He also filed a number of papers with the district court to support the ALTERNATIVE MOTIONS which demonstrated that the Honduran regulations and resolutions relied upon by the Government to support the charges and convictions against DEFENDANTS had been either repealed or annulled. R9-324, 325, 341. BLANDFORD adopted the ALTERNATIVE MOTIONS and filings. R9-346; R39-95; R41-21.

FN19. These motions included a motion to dismiss, motion for new trial based upon newly-discovered evidence, and motion for redetermination of foreign law. The ALTERNATIVE MOTIONS were timely. Harris v. United States, 149 F.3d 1304, 1308 (11th Cir. 1998)(subject-matter jurisdiction can be raised at any time, including on appeal); see also Fed. R. Crim.P. 33.

The papers which supported the ALTERNATIVE MOTIONS included: a) annulment of Resolution 030-95, relating to the minimum size limit; b) repeal of Decree No. 40 which operated to repeal Agreement 0008-93, relating to hygiene *40 rules for fisheries; and c) repeal of Article 70 of the Fishing Law, relating to the prohibition against destroying the eggs of aquatic species. MCNAB also supported the ALTERNATIVE MOTIONS with two affidavits from Laureano F. Gutierrez Falla ("GUTIERREZ", an Honduran legal expert, who testified, among other things, that the repeal and annulment of these Honduran provisions had retroactive application in criminal cases. R9-336-12-17. He also filed the affidavit of Maria Letizia de Guillen ("GUILLEN"), an Honduran lawyer, who testified that Agreement 0008-93 had been repealed. R9-341-8-10.

B. The Hearing On The ALTERNATIVE MOTIONS.

On August 17, 2001, the JUDGE conducted a hearing to entertain argument on the ALTERNATIVE MOTIONS. [FN16] R41-1-73. MCNAB carefully demonstrated to the JUDGE that the hygiene law (0008-93) had been repealed. He also presented an affidavit from the Government's own pretrial hearing Honduran law expert, PAZ, who agreed, contrary to her prior testimony, that 0008-93 had been repealed prior to the violations alleged against the DEFENDANTS in the Second Superseding Indictment. R41-5-10. MCNAB also argued why the remaining portions of Honduran law were no longer valid, and their invalidation had retroactive effect in a *41 criminal case. R41-10-20.

FN16. The parties did not put on witnesses at this hearing. However, the JUDGE previously had ruled that affidavits of witnesses would be considered by him as if they had appeared,in person. R39-115-16.

In response, the Government asserted that under Honduran law repeal is either express or tacit. It claimed there was a new governmental decree relating to Honduran fishing laws which appeared to contain even stronger measures. Because the new decree expressly repealed the old statute but did not mention the underlying regulation, the repeal was only "tacit." According to the Government, a tacit repeal leaves the previous law in effect as to any provision not in conflict with the provisions of the new law. R41-25. However, the Government admitted that 0008-93 was "expressly repealed" on December 2, 1999. R41-26. As to resolution 030-95, relating to size limit, the Government conceded that the future of that provision was pending in the Honduran courts.

On rebuttal, CAB reiterated that, pursuant to Article 96 of the Honduran Constitution, repeal of a law affecting a penal matter has retroactive effect. R41-36-37. He also maintained that Honduran law was analogous to United States law that, when a statute is repealed, all of the regulations promulgated thereunder are repealed as well. R41-3 7-38.

C. The JUDGE'S Ruling On The ALTERNATIVE MOTIONS.

On August 28, 2001, the JUDGE entered a fifteen-page written order in which he ruled against the DEFENDANTS on all pending motions, including *42 motions for new trial, and the ALTERNATIVE MOTIONS. [FN17] R9-397. In his order, the JUDGE first dealt with resolution 030-95 relating to size limitation. He admitted inter alia that "the legal meaning of this limitation [retroactive effect of the repeal of Resolution 030-95] is not entirely clear to the undersigned." However, he concluded that "the administrative court intended to give its pronouncement prospective, rather than retroactive, effect." R9-397-6. He also determined that even if Resolution 030-95 should be given retroactive effect, "the express language of the administrative court's ruling provides that it will not be a final judgment if an appeal is timely taken." Id The JUDGE went on to observe that the Honduran government in fact had appealed that decision favorable to the DEFENDANTS. Thus, he ruled that Resolution 030-95 "continues to be valid under Honduran law."

FN17. During this litigation, BLANDFORD has made his own filings relating to the fatally-flawed nature of the LACEY ACT violations, has sought a new trial, and moved to dismiss when warranted. Because the facts and law applicable to the foreign law issues have been fully briefed and argued by MCNAB in his ALTERNATIVE MOTIONS, which BLANDFORD has adopted, he respectfully requests that the Court consider his position also as adequately covered in the ALTERNATIVE MOTIONS.

The JUDGE erred when he ruled against DEFENDANTS on this issue, refusing to give retroactive effect to repeal of Resolution 030-95, by relying in part on the administrative court declared the resolution "but ... only for purposes of [its] annulment and future inapplicability. R9-397-5. The JUDGE also relied on the

Note: Page 43 missing in original document.

*44 As to Agreement No. 0008-93, the JUDGE found that it was expressly repealed in 1999. He reasoned that it must have been in effect until that time because otherwise "there would have been no reason for Honduras to expressly repeal it." R9-397-9-10. Additionally, he found that the new law after the 1999 repeal of former law included measures "intended to strengthen the existing law." R9-397-9. Consequently, the JUDGE reasoned that between the 1995 repeal of Decree No. 40 and the express repeal of Agreement 0008-93 in 1999, the latter was in force and could be used to support DEFENDANTS' convictions. R9- 397-8-10.

The final provision which the JUDGE ruled on was Article 70 relating to harvesting egg-bearing lobsters and destruction of their eggs. R9-397-10-15. This was the provision which "[gave] the court the most pause." The JUDGE admitted that Article 70 had been "reworked," and the new law did not contain a prohibition against harvesting egg-bearing lobsters. However, the JUDGE found the new law provided for an "increase in penalties - not-to reduce the prohibited conduct." R9-397-12-14. Thus, he conclude that the intent of the Honduran lawmakers was to keep in force the prohibition relating to harvesting egg-bearing lobsters.

The JUDGE'S reasoning was fatally flawed as to each of the foregoing conclusions. First, the JUDGE ignored a constitutional principle from Honduran law, namely that Honduran laws which become invalid are retroactive to benefit a *45 criminal defendant. Second, he tried to discern the intent of the Honduran lawmakers in a fashion prejudicing DEFENDANTS rather than reading the plain meaning of new provisions in Honduran law. In so doing, the JUDGE violated the fundamental principle that laws which criminalize behavior must be resolved in favor of a defendant where there is doubt or ambiguity about the intent of the lawmakers. [FN19] Jones v. United States, 120 S. Ct. 1904 (2000).

FN19. This failure to apply the "rule of lenity" in reviewing statutes which subject a defendant to criminal sanctions is underscored by the

JUDGE'S refusal to distinguish between civil sanctions and criminal punishment. The JUDGE failed to appreciate that Honduran lawmakers had "strengthened" the fishing laws but only as to civil monetary sanctions. In this fashion, the JUDGE made an impermissible quantum leap affecting the substantial rights of DEFENDANTS by concluding that criminal sanctions under United States law also were intended by their actions.

*46 VI. THE JUDGE ERRED WHEN HE REFUSED TO GRANT BLANDFORD A CONTINUANCE OF THE SENTENCING HEARING BECAUSE A REVISION TO USSG 2S1.1 WAS TO BECOME EFFECTIVE ON NOVEMBER 1, 2001 WHICH WOULD HAVE REDUCED BLANDFORD'S TERM OF IMPRISONMENT.

A. BLANDFORD Requested A Reasonable Postponement Of Sentencing.

On May 21, 2001, BLANDFORD filed a motion to continue sentencing. R9-298. [FN19] The JUDGE denied BLANDFORD's motion and set sentencing for August 2, 2001. R9-304. In his request for a continuance, SCHOENWETTER had explained to the JUDGE that on May 1, 2001, the United States Sentencing Commission had proposed a major change in USSG 2S1.1. The Commission recommended striking 2S1.1, and its Commentary, and inserting new language. SCHOENWETTER had concluded that sentencing under the revised 2S1.1 would mean approximately four years less imprisonment than under the current version of 2S1.1. He also mentioned that he could return to the district court, pursuant to 18 U.S.C. 3582(c)(2), if the Guideline was retroactively applied. However, he *47 supported his request for the postponement because "it certainly is in the interests of judicial economy, as well as fundamental fairness, to conduct the sentencing hearing after the new Guidelines go into effect." R12-297-3.

FN19. Although BLANDFORD didn't request the postponement because the revision to USSG 2S1.1 was to go into effect on November 1, 2001, he is deemed to have adopted this ground, as presented and argued by SCHOENWETTER, because the JUDGE deemed the objections of one of the DEFENDANTS as benefitting all DEFENDANTS for appellate review. R39-95.

B. Effect Of Change In USSG 2S1.1 On BLANDFORD's Sentence.

The new version of USSG 2S1.1 went into effect on November 1, 2001. Under that new Guideline, BLANDFORD's offense Guideline would be calculated pursuant to 2Q2.1 for a violation of the LACEY ACT. Probation had calculated his TOL at 23 under this Guideline. PSI-22. That translated to a sentencing range of 46-57 months. Under the current version of 2S1.1, an additional two levels would be added because BLANDFORD was convicted under Section 1956. USSG 2S1.1(b)(2)(B). This would make his TOL 25 with a corresponding sentencing range of 57-71 months. Were this Court to affirm the JUDGE'S additional two-level increase for obstruction of justice, then BLANDFORD's TOL would be 27 with a sentencing range of 70-87 months. [FN20]

FN20. The foregoing calculations do not mean that BLANDFORD has abandoned his position that the JUDGE erred in accepting Probation's calculation of "loss valuation" for the lobster and monies at issue in this case. BLANDFORD objected to the valuation of $1,775,280.55 in the PSI and, instead, argued that the correct figure was less than $100,000. R9-339-2-3. Whether sentence were imposed under 2S1.1 or 2Q2.1, BLANDFORD would submit that at a re-sentencing hearing the district court should conduct an evidentiary hearing on this issue.

Because the JUDGE had sentenced BLANDFORD to the low end of the *48 Guidelines, it is a fair assumption that he would do so again were this current version of 2S1.1 applied. This would be a term of imprisonment of 27 months less than currently in force. This is a significant reduction for a man BLANDFORD's age, especially because he never has been convicted of any wrongdoing prior to this case. In light of the foregoing, BLANDFORD respectfully prays that the Court find that the JUDGE abused his discretion by obligating him to be sentenced less than three months before the new version 2S1.1 went into effect. Alternatively, BLANDFORD prays that this Court find that 2S1.1 can be applied retroactively to benefit him under this criminal statute.

*49 VII. THE JUDGE ERRED BY FAILING TO UTILIZE THE GUIDELINE FOR BLANDFORD'S 1957 SUBSTANTIVE MONEY-LAUNDERING CONVICTIONS WHICH WOULD HAVE YIELDED A LOWER GUIDELINE IMPRISONMENT RANGE THAN UNDER THE TOTAL PUNISHMENT UNDER COUNT l(d) FOR A VIOLATION OF 1956 MONEY LAUNDERING.

In other sections of this Initial Brief, BLANDFORD has argued that the JUDGE erroneously used his conviction under count l(d) to impose a total punishment of 97 months imprisonment. Assuming arguendo that BLANDFORD was convicted lawfully under the LACEY ACT and 1957 conspiracy and substantive counts, his TOL still would have been less under the Guideline for the 1956 offense under count l(d).

Pursuant to the information set forth in the PSI, BLANDFORD's 1957 conviction would have a BOL of 17 plus two levels for specified unlawful activity and five more levels for the amount of funds. USSG 2S1.2. This yields an adjusted offense level of 24 rather than 28. PSI-22-23. Assuming, but without agreeing, that an obstruction of justice enhancement adds two more levels, BLANDFORD's TOL would have been 26 instead of 30 used to sentence him. The sentencing range for a level 26 is 63-78 months. If the JUDGE sentenced BLANDFORD at the low end of *50 that range, then the difference between the current sentence of 97 months and a sentence of 63 months would be 34 months. [FN21]

FN21. This argument does not mean that BLANDFORD abandons his other issues on appeal which demonstrate that his convictions cannot stand and, if they do, that at most his Guideline range should be calculated on the LACEY ACT violations. Of course, if any of the LACEY ACT convictions are set aside, then the money-laundering convictions related to them must be vacated as well.

*51 VIII. THE JUDGE ERRED BY INCREASING BLANDFORD'S TOTAL OFFENSE LEVEL BY TWO-LEVELS FOR OBSTRUCTION OF JUSTICE WHERE THERE WAS NO PROOF BY A PREPONDERANCE OF THE EVIDENCE THAT HIS CONDUCT SIGNIFICANTLY OBSTRUCTED OR IMPEDED THE OFFICIAL INVESTIGATION OR PROSECUTION OF THE CASE.

In his objections to the PSI, BLANDFORD disputed the two-level increase for obstruction of justice pursuant to USSG 3C1.1. R9-339-3. At the sentencing hearing, the Government did not produce any witnesses to show proof by a preponderance that BLANDFORD had obstructed justice by his failure to produce documents covered by the grand jury subpoena. Rather, the JUDGE heard only argument by the attorneys. R37-39. However, he still found that BLANDFORD had obstructed justice by failing to produce documents which the Government alleged he had in his possession. R37-47-48.

There was no evidence before the JUDGE to show that BLANDFORD had "significantly obstructed] or impede[d] the official investigation or prosecution of the instant offense." See USSG 3C1.1 (Application Notes 4(g) and 5(b)); United States v. Leeper, 886 F.2d 293 (11th Cir. 1989). That was the standard which the Government had to meet before the JUDGE could enhance BLANDFORD two *52 levels under 3C1.1. Because BLANDFORD had made this an issue for the sentencing hearing, it was incumbent on the Government to come forward with evidence and prove this issue by a preponderance. United States v. Lawrence. 47 F.3d 1559 (11th Cir. 1995)(Government must present reliable and specific evidence). Because the Government failed to meet its burden at the sentencing hearing, the two-level enhancement for obstruction was unlawful.

*53 CONCLUSION

BLANDFORD respectfully prays for the following relief as to the Issues raised in this Initial Brief: a) Issue I-reverse with instructions to the JUDGE to re-sentence him on a count of conviction other than under count 1(d) and in compliance with Apprendi v. New Jersey; b) Issue II-reverse and set aside his conviction under count l(d); c) Issue III-remand with instructions to impose a sentence no greater than the statutory maximum of five years; d) IV-reverse and set aside his convictions under all counts where his convictions were grounded in Honduran law violations; e) Issue V-reverse and set aside his convictions under all counts where his convictions were grounded in Honduran law violations; f) Issue Vl-remand with instructions to re-sentence him under the current version of USSG 2S1.1; g) Issue Vll-remand for re-sentencing with instructions to utilize USSG 2S1.2; and h) Issue VIII-strike the two-level increase under USSG 3C1.1. [FN22]

FN22. BLANDFORD requests that the foregoing relief be considered by this Honorable Court in the alternative in the event that one or more of the requests are not granted by the Court.