2002 WL 32593949 (11th Cir.)

For opinion see 331 F.3d 1228

United States Court of Appeals, Eleventh Circuit.

UNITED STATES AMERICA, Plaintiff-Appellee, v. David Henson MCNAB, Defendant-Appellant.

No. 01-15148.

January 3, 2002.

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

NO-00-00079(1)-RV

Reply Brief of Defendant-Appellant David Henson Mcnab

Patrick H. Sims, Cabaniss, Johnston, Gardner Dumas & O'Neal, P.O. Box 2906, Mobile, Alabama 36652, Telephone: 251.433.6961, Facsimile: 251.415.7350

J. Patrick Courtney, III, P.O. Box 2205, Mobile, Alabama 36652-2205, Telephone: 251.694.1001, Facsimile: 251.433.3752

William W. Watts, III, Hudson & Watts, P.O. Box 989, Mobile, Alabama 36601- 0989, Telephone: 251.432.7200, Facsimile: 251.432.0073

Donald M. Briskman, Briskman & Binion, P.O. Box 43, Mobile, Alabama 36601, Telephone: 251.433.7600, Facsimile: 251.433-4485, Attorneys for Appellant

*ii TABLE OF CONTENTS

Table of Contents ... ii

Table of Authorities ... iv

Statement Regarding Adoption of Briefs of other Parties ... vi

Legal Argument ... 1

I. THE GOVERNMENT BEARS THE BURDEN OF PROVING THE VALIDITY OF THE HONDURAN LAWS IT CLAIMS WERE VIOLATED ... 1

II. UNDER HONDURAN LAW, THE REPEAL OF DECREE NO. 40 RENDERED THE REGULATIONS PROMULGATED THEREUNDER OF NO FORCE OR EFFECT ... 1

III. LACEY ACT PROSECUTIONS REQUIRE LAWS WITH SOME NEXUS TO WILDLIFE PROTECTION; REGULATION 008-93 HAS NO SUCH NEXUS ... 6

IV. THE HONDURAN COURTS HAVE CONFIRMED MCNAB'S CONTENTIONS THROUGHOUT THESE PROCEEDINGS THAT RESOLUTION 030-95 WAS VOID FROM ITS INCEPTION ... 7

V. THE LACEY ACT REACHES ONLY FOREIGN "LAWS" NOT "REGULATIONS" ... 10

VI. HONDURAN LAW DID NOT PROHIBIT THE HARVESTING OF EGG-BEARING LOBSTER ... 12

A. Article 70(3) of the Fishing Law of 1959 Did Not Prohibit The Harvesting of Egg-Bearing Fish or Lobster ... 12

B. Former Article 70(3) Did Not Survive the Restatement of Article 70 by Decree No. 245-2000 ... 14

VII. THE GENERAL VERDICT MUST BE SET ASIDE BASED UPON ONE OR MORE IMPROPER CHARGES OF HONDURAN LAW ... 16

VIII. THE JURY INSTRUCTION DEPRIVED MCNAB OF HIS RIGHT TO A UNANIMOUS VERDICT ... 18

*iii IX. THE SECTION 1956(A)1(A)(I) VIOLATION WAS NEITHER PROPERLY CHARGED NOR PROVEN BY SUFFICIENT EVIDENCE ... 19

A. Inadequacy of Charge to Jury ... 19

B. Insufficiency of Evidence ... 19

X. THE GOVERNMENT REPRESENTED TO THE DISTRICT COURT THAT IT WAS NOT CHARGING MCNAB WITH AN UNLOADING VIOLATION ... 21

XI. THE DISTRICT COURT ERRED IN EXCLUDING MCNAB'S EVIDENCE OF LACK OF A "KNOWING" VIOLATION ... 22

XII. EVIDENCE OF REPORTING VIOLATIONS WERE INSUFFICIENT TO SUSTAIN CONVICTION UNDER THE LACEY ACT ... 24

Certificate of Compliance ... 25

Certificate of Service ... 26

*iv TABLE OF AUTHORITIES

CASES

Aerolineas Argentinas v. United States, 77 F.3d 1564, 1575 (D.C. Cir. 1996) ... 5

Bell v. Maryland, 378 U.S. 226 (1964) ... 9, 15

Hughey v. United States, 495 U.S. 411, 422 (1990) ... 12

Kolender v. Lawson, 461 U.S. 352, 357 103 S. Ct. 1855, 1858, 75 L. Ed. 2d (1983) ... 13

Neder v. United States, 521 U.S. 1 (1999) ... 20

New Hampshire v. Maine, 532 U.S. 742 (2001) ... 22

Roper v. Consurve, Inc., 777 F. Supp. 508, 513 (S.D. Miss. 1990) ... 16

Schad v. Arizona, 501 U.S. 624 (1991) ... 18

United States v. Atkinson, 135 F.3d 1563 (11th Cir. 1998) ... 18

United States v. Auerbach, 68 F. Supp. 776 (S.D.Cal. 1946) ... 15

United States v. Behety, 32 F.3d 503,508 (11th Cir. 1994) ... 19

United States v. Bosch, 505 F.2d 78, 82 (5th Cir. 1974) ... 17

United States v. Coonan, 839 F. 2d 886, 891 (2nd Cir. 1988) ... 17

United States v. 594.464 Pounds of Salmon, 871 F.2d 824 (9th Cir. 1989) ... 11

United States v. Fortier, 342 U.S. 160, 72 S. Ct. 189 (1951) ... 4

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) ... 18

United States v. Grigsby, 111 F.3d 806 (11th Cir. 1997) ... 23, 24

United States v. Hark, 49 F. Supp. 95 (D.C. Mass. 1943) ... 9

United States v. Hawthorne, 31 F. Supp. 827, 829 (N.D. Texas 1940) ... 5

*v United States v. Jackson, 542 F.2d 403 (7th Cir. 1976) ... 17

United States v. James, 432 F.2d 303 (5th Cir. 1970) ... 17

United States v. Kolter, 849 F.2d 541 (11th Cir. 1988) ... 15

United States v. Lee, 937 F.2d 1388 (9th Cir. 1991) ... 10

United States v. McDougall, 25 F. Supp. 2d 85, 89 (N.D.N.Y. 1998) ... 1

United States v. Molt, 599 F.2d 1217 (3rd Cir. 1979) ... 6

United States v. O'Looney, 544 F.2d 385, 392 (9th Cir. 1976) ... 17

United States v. Powers, 1989 W.L. 69255, at *6 n. 1 (D. Idaho March 1989), aff'd., 923 F.2d 131 (9th Cir. 1990) ... 1, 6, 7

United States v. Romano, 929 F. Supp. 502, 506 (D.Mass, 1996) ... 6

United States v. Richardson, 526 U.S. 813 (1999) ... 18

United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989) ... 17

United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985) ... 1

United States v. Van Den Berg, 5 F.3d 439, 443 n. 7 (9th Cir. 1993) ... 9

United States v. Wilson, 249 F. 3d 366 (5th Cir. 2001) ... 20

STATUTES

16 U.S.C. § 3373(a)(d)(1)-(2) ... 10, 11

18 U.S.C. §§ 1956(a)(1)(A)(i) ... 19, 20

STATEMENT REGARDING ADOPTION OF BRIEFS OF OTHER PARTIES

Defendant McNab adopts by reference those portions of the Reply Brief filed by defendant Diane Huang relating to the money laundering charges under Section 1956(a)(l)(A)(i), the Government's shifting of the burden of proof and the Government's assertion of a theory of estoppel to preclude the reversal of the general verdict.

*1 LEGAL ARGUMENT

I.

THE GOVERNMENT BEARS THE BURDEN OF PROVING THE VALIDITY OF THE HONDURAN LAWS IT

CLAIMS WERE VIOLATED.

The Government expressly acknowledged at the foreign law hearing that "we have an obligation to prove that the law is valid" (R19-40). Having taken this position at trial, the Government is in no position to argue that the burden actually rested upon defendants.

The Government bears the burden of proof on each of the elements of a Lacey Act violation, one of which is the existence of a fish or wildlife law. Proof of a law not validly promulgated is not proof of the "existence" of anything.

The Ninth Circuit has squarely placed the burden of proof on the Government in a Lacey Act prosecution. See United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985). No other Circuit has held otherwise. The Court in Sohappy did not limit its holding to the "Indian treaty" context. Rather, it concluded generally "that the federal government must establish the validity of the state regulations underlying a Lacey Act prosecution." Id. at 824. Subsequent cases have followed Sohappy in other contexts where Indian treaty rights were not involved. See United States v. McDougall, 25 F. Supp.2d 85, 89 (N.D. N.Y. 1998); U.S. v. Powers. 1989 W.L. 69255, at *6 n. 1 (D. Idaho March 9, 1989), aff'd., 923 F.2d 131 (9th Cir. 1990).

II.

UNDER HONDURAN LAW, THE REPEAL OF DECREE NO. 40 RENDERED THE REGULATIONS

PROMULGATED THEREUNDER OF NO FORCE OR EFFECT.

The Government does not dispute that Decree No. 40, the enabling legislation for Regulation 0008-93, was expressly repealed in 1995 by Decree No. 157-94. It contends, however, that this repeal did not repeal the underlying regulations, based on Article 44 of the Honduran Civil Code *2 (Govt. Br. at 23). The Government no longer has any witness to support this argument. The Secretary of State of the Offices of Agriculture and Livestock has recently issued a Resolution "to disqualify as an error of law" the affidavit previously given by his Secretary General, Liliana Paz, "as well as any other statement contrary to what is set forth in this Resolution," inasmuch as such statements "contradict the Constitution of the Republic, the laws of the country, the international treaties and conventions and the principles of law." (McNab Add. Tab 10). Regarding Regulation 0008-93, the Secretary states:

"Pursuant to the Legal Principles of Law, confirmed by Decree No. 198-2001, recently issued by the National Congress, the express repeal of a law makes the regulations issued by the Executive Branch to enforce the repealed law without value or effect, unless there is an express provision in the repealing law." [FN1]

FN1. The Human Rights Commissioner, in his Special Report, identifies the applicable "Principles of Law" as "the old maxim that what is accessory follows the fate of the principal." (McNab Add. Tab 10, "Special Report" at pg. 4).

The Government characterizes this document as merely a "statement" of Liliana Paz, but it is in fact a certification by Ms. Paz of a Resolution adopted and signed by her boss, the Ministry of Agriculture and Livestock. To satisfy any doubt, McNab includes a copy of the signed Resolution in the Addendum to this Brief (Tab 1). This Resolution sets forth the "official position of this Secretariat of State" and is a binding administrative decision, issued in accordance with Article 120 of the General Law of Public Administration. See Attorney General opinion, ¶B12 (McNab Add. Tab 3).

Relying on its own agent's hearsay affidavit testimony, the Government contends that the Commissioner improperly failed to contact anyone at the Ministry, in contradiction to Article 32 of the Organizational Law. McNab disputes this. The Resolution reflects that the "Legal Department *3 of this Secretary of State" reviewed the facts alleged in the Report and came to the opinion that the Commissioner was "totally correct" and that his recommendations should be adopted (McNab Add. Tab 10, pg. 1). This Legal Department consisted of the very officials who the Government contends should have been contacted - Ms. Paz, Ms. Puerto and Mr.Umanzor. (R6-387, Ex. B). These are the same legal advisors whose affidavits the Government submitted to the district court, claiming that Regulation No. 0008-93 was not repealed until December 2, 1999, when the new hygiene regulations were issued (R6-387, Exs. C and D).

In any event, the Government does not explain why the Commissioner's allegedly "limited" investigation should in anywise affect the validity of the Resolution adopted by the Secretary of State. The parties who the Government claims should have been contacted agreed with the Commissioner's report.

Thus, the head of the Ministry issuing the hygiene regulations has concluded, as the "official position" of that Ministry, that Regulation 0008-93 expired in 1995, when Decree No. 40 was repealed.

The Principles of Law upon which this conclusion is based were recently reiterated by the National Congress of Honduras, in Decree No. 198-2001, interpreting Article 43 of the Civil Code (McNab Add. Tab 8). The Government blithely dismisses this new legislation, claiming, first, that it is "not clear" that it would apply to the total replacement of Decree No. 40 with Decree No. 157-94; secondly, that no explanation is given of the "weight" that Congress' interpretative position has under Honduran law; and, thirdly, that the decree is not probative of Congress' intent when it enacted Decree 157-94 No. in 1995 (Govt. Br. at 25). These contentions are refuted, respectively, below.

*4 First, the full text of Decree No. 198-2001 reflects that, in fact, it does apply to repeals by replacement of similar legislation. [FN2] The Decree recites that it was adopted to remove any doubt "concerning the efficacy and effects of the regulations of the laws which have been repealed by others later issued by the National Congress on the same matter" (Tab 2) (emphasis added).

FN2. The full text of Decree No. 198-2001 is included in the Addendum to this Brief (Tab 2).

Secondly, Article 205(1) of the Honduran Constitution attributes to the National Congress the sole power to "interpret" laws. See Attorney General Opinion (McNab Add. Tab 3). Thus, the "weight" of the interpretive Decree is of Constitutional magnitude.

Thirdly, the Decree is entirely probative of the effect of the repeal of Decree No. 40 in 1995. The Government assumes otherwise by erroneously reading the Decree as an effort to change the law. A change would have been accomplished by an amendment, a separate power under Article 205(1) of the Constitution. Decree 198-2001 "interprets" existing law, an interpretation fully consistent with the opinions of numerous legal experts submitted to the District Court before this Decree was passed (R5-341, R6-388).

In relying on Article 44, relating to "tacit repeals," the Government is trying to squeeze a square peg through a round hole. This is not a case of tacit repeal. Decree No. 157-94 expressly repealed Decree No. 40. [FN3] Whether the regulations under Decree 40 expire with the repeal of Decree No. 40 does not depend upon whether those regulations conflict with the repealing law, Decree No. 157-94. They stand or fall upon an entirely different principle of law relating to the subordinate *5 nature of regulations, which draw their life solely from the enabling legislation. This is not a unique principle under Honduran law. See United States v. Fortier, 342 U.S. 160, 72 S. Ct. 189 (1951); Aerolineas Areentinas v. United States. 77 F.3d 1564, 1575 (D.C. Cir. 1996) ("when a statute has been repealed, the regulations based on that statute automatically lose their vitality"); United States v. Hawthorne, 31 F. Supp. 827, 829 (N. D. Texas 1940) ("a regulation dies with the statute from which it gains its life").

FN3. The Government focuses on the failure of Decree No. 157-94 to expressly mention the repeal of Regulation 0008-93 or any other regulations, in its repeal of Decree No. 40. The reason for such an omission is obvious. The National Congress repeals the laws it adopts, not the regulations issued by the President.

Even if this case involved "tacit" repeal, it would be the tacit repeal of a "regulation" ("reglamento") not a statutory "law" ("ley"). Article 44 governs the repeal of statutory "laws" ("leyes") not "regulations" ("reglamentos"). See Spanish version of Article 44 (R6-387, Govt Ex. F). Honduran law maintains a consistent distinction between statutory "laws" ("leyes") and "regulations" ("reglamentos"). Congress enacts "leyes" (Art. 205(1), Constitution); only the President issues "reglamentos" (Art. 245(11), Constitution) (Folder 4, Ex. 1, ¶A and Ex. 3, ¶2).

The Ministry's declaration in the 1999 hygiene regulations that Regulation 0008-93 was repealed was gratuitous. Those regulations expired as a matter of law upon the repeal of Decree No. 40. Indeed, in repealing Decree No. 40, the National Congress recognized the need for new regulations and, in order to avoid any regulatory vacuum, mandated that the Executive Power issue such regulations within ninety days of the effective date of the new law. See Decree No. 157-94, Article 43 (McNab Add. Tab 7).

In summary, the Government's position that Regulation 0008-93 was not repealed in 1995, when the enabling legislation was repealed, flies in the face of general principles of Honduran law, as discussed in numerous expert affidavits submitted to the trial court, and as definitively confirmed post-trial by a Resolution of the Secretary of the Ministry issuing such regulations, and by Congressional legislation.

*6 III.

LACEY ACT PROSECUTIONS REQUIRE LAWS WITH SOME NEXUS TO WILDLIFE PROTECTION;

REGULATION 008-93 HAS NO SUCH NEXUS.

The Government contends that, in amending the Lacey Act in 1981, Congress rejected the holding in United States v. Molt. 599 F.2d 1217 (3rd Cir. 1979) that the laws underlying a Lacey Act prosecution must be "designed and intended for the protection of wildlife." (Govt. Br. at 30). Although Congress did find such an interpretation "too restrictive," it nevertheless made clear that the underlying law must have some nexus to the protection of wildlife. Thus, laws that relate solely to the "public health and safety," without any relation to wildlife protection, would not be within the scope of the Act. See S. Rep. No. 97-123, reprinted in 1981 U.S.C.C.A.N. 1748, 1753. (discussing "federal quarantine laws" as sufficiently related to wildlife). See United States v. Romano, 929 F. Supp. 502, 506 (D. Mass. 1996) ("public health and safety laws" outside parameters of Lacey Act liability): United States v. Powers. 1989 W.L. 69255, *3 (D. Idaho 1989) ("laws or regulations which are simply enacted for revenue and public safety with no reference to wildlife are not contemplated by the Act").

Unlike federal quarantine laws, which expressly protect animals, [FN4] Regulation 008-93 is simply a hygiene regulation protective of the public health. It is not designed nor effective for the protection of wildlife. Its purpose is the protection of "the health of the people and the national *7 economy" (McNab Add. Tab 6, pg. 1). Nothing indicates a purpose to protect or preserve wildlife. [FN5] The Government contends otherwise, arguing that the processing inspection requirements "allow Honduran authorities to monitor lobster shipments for compliance with applicable standards" (Govt. Br. at 29). This is a lawyer's afterthought. Neither the record nor the language of Regulation 008-93 suggests that the inspection of product serves to verify compliance-with limits on the harvesting of undersized or "egg-bearing" species. The "inspection" is an examination and identification of the "organoleptic state and condition of the fishing product" (McNab Add. Tab 6, pg. 4). Article 57 identifies the organoleptic characteristics which must be considered to make the products appropriate for human consumption (McNab Add. Tab 6, pgs. 24-26). None of these characteristics relates to size or egg-bearing.

FN4. Under the federal quarantine laws, the President can issue a quarantine only when necessary "for the protection of animals ..." 21 U.S.C. Section 101 (emphasis added).

FN5. An examination of the purposes declared in the legislation can provide guidance to the Court in determining whether or not such legislation is within the scope of the Lacey Act. Powers 1989 W.L. 69255, at *3. The Honduran authorities know how to identify wildlife protection as a legislative purpose when they want to do so. See, e.g., Decree No. 157-95 (McNab Add. Tab 7).

In short, Regulation 008-93 is solely a "human health and safety" regulation with no nexus to wildlife protection in purpose or effect. A Lacey Act prosecution cannot be founded on such a law.

IV.

THE HONDURAN COURTS HAVE CONFIRMED MCNAB'S CONTENTIONS THROUGHOUT THESE

PROCEEDINGS THAT RESOLUTION 030-95 WAS VOID FROM ITS INCEPTION.

In its Brief, the Government no longer argues for the validity of the Resolution 030-95. Its argument that the Resolution did not need to be issued by the president, based on the "expert" testimony of its only witness, Liliana Paz - upon whom the District Court relied in concluding that *8 the Resolution was valid (R4-209, pg. 13) - has now been uncategorically rejected by the Honduran courts. The Honduran Court of Appeals affirmed that Resolution 030-95 was null and void because "pursuant to Article 245, Item 11 and 248 of the Constitution of the Republic, in order for regulations to have legal effect, they must be issued by the President of the Republic ..." (McNab Add. Tab 5) (emphasis added). The Government was wrong, its witness was wrong, and the District Court erred in relying on them.

Having no longer any legal basis for sustaining the validity of Resolution 030-95, the Government claims the Honduran court decisions are not retroactive, relying upon language in the Administrative Court opinion. This argument misses the point. The relevant issue is not whether the Honduran courts make their rulings prospective or retroactive for certain purposes in Honduras. The issue is whether McNab's challenge to the validity of the Resolution, from the inception of these proceedings, was correct or incorrect. Those Honduran decisions demonstrate that he was correct and that the District Court and the Government were incorrect. McNab submits that this Court, reviewing the question of Honduran law de novo, would have reached the same result, even in the absence of those Honduran decisions, given the disparity in the weight and credibility of the evidence submitted by the parties. Now, there is no question at all regarding that outcome.

In any event, the Government can take little solace in the language of the Administrative Court. That Court concluded that the challenged Resolutions violated the legal code "at the time they were issued" (McNab Add. Tab 4). The fact that that Court declared the Resolution void for. the purpose of its "future inapplicability" does not mean that McNab, the party who commenced the annulment proceeding during the pendency of this prosecution, does not gain the advantage of that decision. The language immediately following this phrase makes clear that the Administrative Court simply wanted to ensure that its ruling would not give rise to "any right to claims" against any *9 Honduran authorities. Under the Honduran Constitution, such authorities can face liability for unlawful administrative actions. See Honduran Constitution, Sections 321 and 324 (Folder 4, Ex. 5, pgs. 9-10).

The Government is, finally, estopped from defeating the effect of these decisions by arguing a lack of retroactivity. McNab requested a continuance of the trial to allow him time to file an annulment proceeding in Honduras. (R23- 12-14). The Government successfully opposed such a continuance, telling the District Court that the standard of review on appeal of the Court's determination of foreign law was "de novo, so the Eleventh Circuit would be allowed to consider anything that they [defendants] can come up with" (R23-21, 22). Having obtained the benefit it sought in forcing the matter to trial before a decision by the Honduran courts, the Government is judicially estopped from taking any advantage from the fact that the decisions were not reached until after the trial.

In any event, the judicial decisions are retroactive under Article 96 of the Constitution. In his Resolution, the Secretary of State concludes that the final judgment of the Appeals Court of October 11, 2001, "expands" the ruling of the Court of Administrative Law and that it has "a retroactive effect" under Article 96 of the Honduran Constitution, for purposes of criminal matters, "as is in the case of Mr. McNab" [FN6] (McNab Add. Tab 10.).

FN6. The Government argues that the retroactivity for "penal matters" under Article 96 of the Honduran Constitution has no application to this prosecution for a federal criminal offense (Govt. Br. at 34). These judicial decisions, however, are not retroactive under the "universal" common law rule in this country, see Bell v. Maryland, 378 U.S. 226 (1964), nor under 1 U.S.C. Section 109 which only applies to legislative repeals of statutes. United States v. Van Den Berg. 5 F.3d 439, 443 n. 7 (9th Cir. 1993). Section 109 also does not extend to the repeal of regulations. U.S. v. Hark. 49 F. Supp. 95 (D.C. Mass. 1943), rev'd on other grounds, 320 U.S. 531.

*10 V.

THE LACEY ACT REACHES ONLY FOREIGN "LAWS" NOT "REGULATIONS."

The Government addresses none of McNab's substantive arguments in his brief relative to whether violations of "foreign regulations" were criminalized by the Lacey Act. Instead the Government relies on two Ninth Circuit cases.

United States v. Lee, 937 F.2d 1388 (9th Cir. 1991), is the only post-1981 amendment criminal case to address the issue. After first resorting to legislative history, the Court in Lee articulated a series of profound non-sequiturs:

We conclude, however, that the Act's criminal sanctions provision resolves any possible ambiguity. That provision only allows for the imposition of criminal penalties if a violator knew or, in the exercise of due care, should have known that he was taking fish unlawfully under "any underlying law, treaty, or regulation." 16 U.S.C. § 3373(d)(l)-(2). Because the criminal culpability requirement makes reference to regulations, and because it seems clear that Congress intended "foreign law" to have a singular meaning throughout the Act, we hold that the Taiwanese regulation constitutes a "foreign law" in this case.

937 F.2d at 1392.

The Court's first conclusion that the "mens rea" provision "resolves any possible ambiguity" is simply erroneous. The Court completely overlooks the objective, conduct-based "prong" of the criminal penalty section. Section 3373(d)(l) requires not only the "mens rea" of a knowing violation but also objective conduct that violates "any provision of this chapter." So there must be a "prohibited act" as defined under Section 3372, which section makes unlawful a violation of "foreign law" but makes no reference to "foreign regulation." The Court's reasoning holds no water. Under its approach the definition of "prohibited acts" is unnecessary, since the criminal sanction portion makes reference to any law or regulation.

*11 The Lee court's second reason for reading regulations into the phrase "foreign law" is that "it seems clear that Congress intended foreign law to have a singular meaning throughout the Act." Defendant agrees the phrase should have a singular meaning, but the question is what is that meaning and does the phrase "foreign law" sub silentio incorporate foreign regulations. The phrase "foreign law" appears in three places in the 1981 Act. Two of them are in Section 3, highlighted on page 46 of McNab's initial brief. The third is in the Civil Penalties portion of Section 4 (16 U.S.C. § 3373(a)(1)) which sets a cap on civil fines where low value goods were transported:

in violation of any law, treaty, or regulation of the United States, any Indian tribal law, any foreign law, or any law or regulation of any State ....

Thus this portion of the Act itself collects in the same sentence all possible sources of prohibitions. It identifies "foreign law" as one of these, brackets that term with reference to any United States "regulation" and any State "regulation," but makes no mention of foreign "regulation." This makes perfectly plain that the singular meaning of "foreign law" sought by the Ninth Circuit excludes, rather than includes, foreign regulations.

The Government also relies on United States v. 594.464 Pounds of Salmon. 871 F.2d 824 (9th Cir. 1989), which, upon analysis, supports McNab's view of the "foreign regulations" issue in the present case. Salmon was a civil case brought under the Lacey Act forfeiture provisions. After concluding that the phrase "any foreign law," in the context of the Act's other references to "regulations," made the statute ambiguous, the Court made the critical distinction that Salmon was a civil case, id. at 829, so that the rules requiring strict construction of criminal statutes were not applicable.

If we apply the rules of statutory construction established by the Supreme Court for criminal cases to the Ninth Circuit's analysis in Salmon, that case itself requires rejection of the *12 Government's position. The Ninth Circuit resolved the ambiguity in the statute adversely to the civil defendant/claimant through application of its view of the Lacey Act "policy" and legislative history. In the criminal context, however, the principles of construction are different:

"[l]ong-standing principles of lenity, which demand resolution of ambiguities in criminal statutes in favor of the defendant, preclude our resolution of the ambiguity against [the criminal defendant] on the basis of general declaration of policy in the statute and legislative history."

Huehey v. United States, 495 U.S. 411, 422 (1990).

Established construction rules require a decision that Congress meant what it said and did in writing "foreign regulations" out of the Lacey Act in 1981. Even if the Court finds the statute ambiguous, that ambiguity must be resolved in defendant's favor.

VI.

HONDURAN LAW DID NOT PROHIBIT THE HARVESTING OF EGG-BEARING LOBSTER.

A. Article 70(3) of the Fishing Law of 1959 Did Not Prohibit the Harvesting of Egg-Bearing Fish or Lobster.

In its Brief, the Government fails to address the stark inconsistency between Article 54 of The Fishing Law of 1959, which permits the "sale" of "eggs" of "fish" and "crustaceans" and what the Government contends is Article 70(3)'s prohibition of the harvesting of the "eggs" of "aquatic species" "for profit." A criminal prosecution based upon a law with such inherent contradictions makes a mockery of the requirement of fair notice under due process standards.

Even in the absence of this blatant inconsistency, the "plain meaning" of Article 70(3), punishing those who "destroy or harvest the eggs or the offspring" offish or other aquatic species "for profit," is a prohibition of commerce in eggs or offspring, not a prohibition of commerce in fish or other aquatic species that coincidentally may be egg-bearing at the time of their capture. *13 The latter reading would shut down the Honduran fishing industry. The Government points to McNab's letters as confirming its reading of Article 70(3) (Govt. Br. at 38). There is no evidence that these letters were based on Article 70(3), or that McNab ever heard of Article 70(3).

The Honduran authorities know how to proscribe the harvesting of egg-bearing lobsters when they want to do so. The Government was armed with such a purported "law" - Resolution 003-80 - until it discovered that that Resolution was never published or signed by the President and could not be proven to be valid. That Resolution read:

"... [i]t is prohibited at all times to harvest, process, or sell gravid female lobsters or lobsters with eggs. Any gravid female caught shall be returned to the water unharmed. Furthermore, it is absolutely prohibited to tear out or, in any other way, separate the eggs from the female" (R1-46, Ex. 1).

Article 70(3) was not, as the Government contends, "substantially identical" to Resolution 003-80 (Govt. Br. At 39), and was insufficient to put McNab on notice that the harvesting of egg-bearing lobsters was prohibited. See Kolender v. Lawson, 461 U.S. 352, 357 (1983).

Not only does Article 70(3) not say what the Government contends but also the charge to the jury added specific language from Resolution 003-80 that was not apart of Article 70(3). The Court charged the jury that Honduran law:

"Prohibits one to harvest or destroy the eggs of any aquatic species, including spiny lobsters, for profit; this includes a prohibition against the tearing out or in any other way separating the eggs from the female lobster for profit" (R33-1589) (emphasis added).

Thus, Mr. McNab was likely convicted based upon the substance of invalid Resolution 003-80, which had been withdrawn by the Government prior to trial.

Finally, Mr. McNab was first charged with violation of Article 70(3) only four days before the jury was selected. The Government contends there was no "unfairness" or "prejudice" because McNab was able to squeeze in one supplementary affidavit on the issue. Had adequate notice been *14 given, far more evidence, perhaps sufficient to have convinced the District Court otherwise, could had been garnered and presented on the meaning of this statutory language. It is also not true, that McNab declined the District Court's offer to grant a continuance of the trial, to give him time to prepare a response. At the foreign law hearing, McNab was arguing that he had not been charged with violating Article 70(3) and that if the Government amended the indictment "we will fight that until the cows come home" (RI9-39), and might request a continuance if the Court allowed that. (R19-46). On October 11, 2000, defendant McNab did just that. (R4-206). Two days later, the Court denied this motion. (R23-11).

B. Former Article 70(3) Did Not Survive the Restatement of Article 70 by Decree No. 245-2000.

The Government contends, incredibly, that original Article 70(3) of The Fishing Law of 1959 survived the enactment of Decree No. 245-2000 (Govt Br. at 40-41). This Decree, in the first article, stated that it was amending Article 70 "which hereafter must read as follows ..." and then completely restated Article 70, describing the violations to be sanctioned in eleven categories of defined conduct (McNab Add. Tab 9). Nothing in the Decree indicates any intent to preserve any part of former Article 70.

The Government contends that the repeal of Article 70(3) was only "implicit" and therefore it survived under Article 44 of the Civil Code, not being in "conflict" with anything in the new Decree. This is manifestly wrong. Article 70(3), and every thing else in former Article 70, is in complete conflict with Article 1 of Decree No. 245-2000 which states that Article 70 "hereafter must read as follows: ..." and then restates Article 70 in its entirety. If the Government's theory of implicit repeal were correct, the task of determining Honduran law on any given subject would be a hopeless quagmire of historical analysis of superseded laws.

*15 The Government argues that the egg-harvesting prohibition of Article 70(3) survived in the "catch all" provision of the new Decree for "any other activity ... which is analogous." (Govt Br. at 41). The Government does not even attempt to demonstrate how egg harvesting is "analogous" to any proscribed activity in Decree 245-2000. Nor does it show how a criminal prosecution for undefined "analogous activity" would be consistent with due process under the United States Constitution.

Finally, the Government claims that Decree 245-2000 has no retroactive effect so as to benefit Mr. McNab because Article 96 of the Honduran Constitution has no application to these U.S. criminal proceedings (Govt. Br. at 42). [FN7] The Honduran Secretary of State has resolved otherwise (McNab Add. Tab 10). However, even under U.S. law, McNab is entitled to the benefit of retroactivity. See Bell v. Maryland, 378 U.S. 226 (1964); United States v. Kolter, 849 F.2d 541 (11th Cir. 1988). Congress has adopted a statute which reverses this "universal" common law rule in the following circumstances:

FN7. Although the Government contends that the Honduran Assistant Attorney General "confirmed that, for this reason, Article 96 does not apply" (U.S. Add. Tab 2) (Govt. Br. at 34), that affidavit says no such thing.

"Repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide ..." 1 U.S.C. Section 109 (emphasis added).

Section 109, being in derogation of the common law, must be strictly construed. U.S. v. Auerbach, 68 F. Supp. 776 (S. D. Cal. 1946). So construed, Section 109 should not apply to the repeal of Article 70(3) because, first of all, Section 109 applies only to the repeal of federal statutes, not to the repeal of state or foreign laws that may be incorporated by reference in a federal statute. See Roper v. Consurve, Inc., 777 F. Supp. 508, 513 (S.D. Miss. 1990). Secondly, Section 109 saves from *16 extinction only a penalty or liability incurred "under" the repealed statute. The "penalty" allegedly incurred by Mr. McNab was not incurred "under" repealed Article 70(3), but rather under the Lacey Act. There is no repeal of the Lacey Act.

Finally, assuming arguendo the applicability of Section 109, that statute allows for a repealing statute to release a preexisting penalty or liability, where the legislating body expressly so provides. Article 96 of the Honduran Constitution does so provide. As the supreme law, this Article of the Constitution must be read into every repealing law in Honduras, thus satisfying the proviso of Section 109.

VII.

THE GENERAL VERDICT MUST BE SET ASIDE BASED UPON ONE OR MORE IMPROPER CHARGES OF HONDURAN LAW.

The Government admits that, if any of the District Court's determinations of Honduran law were erroneous, the general rule requires reversal of the general verdict and a new trial (Govt. Br. at 42). The Government contends, however, that McNab is "estopped" from seeking this relief because "defendants" objected to the Government's proposed special verdict form. McNab's counsel never made any such objection. Only Blandford's lawyer stated at first that he did not "like" the special interrogatories (R33-1574). The Government then gave its reasons for the form - if defendants sought nullification of certain laws, "without a specific finding by the jury, we are all going to have to try this case again if that happens" (R33-1575). Thereafter, no one made any further objection or argument. The District Court then sua sponte declined to use the Government's special verdict, concluding that it would take the jury "six months" to "figure it out" (R33-1575).

*17 It is frivolous to argue that McNab's silence should work an estoppel against his right to a reversal and new trial if one of the Honduran law charges was erroneous. [FN8] The Government itself created this risk of reversal by prosecuting alleged violations of so many dubious "laws."

FN8. Contrary to the Government's suggestion, McNab never adopted Blandford's objection. The Government's record reference to R39-95 (Govt. Br. at 43 n. 21) is an adoption by Mr. Schoenwetter's counsel of arguments made by codefendants with respect to sentencing on August 7, 2001. The record reference at "R40-5" does not exist.

Further, McNab did not "invite" error because it was not "error" for the District Court to sua sponte refuse the Government's requested special verdict form. Special interrogatories to the jury and special verdicts are generally looked upon with disfavor in criminal cases. United States v. Jackson. 542 F.2d 403 (7th Cir. 1976). Indeed, this Circuit has adopted the principle that "special interrogatories should not be used in criminal trials." United States v. Bosch. 505 F.2d 78, 82 (5th Cir. 1974); see United States v. James. 432 F.2d 303 (5th Cir. 1970), cert. denied, 403 U.S. 906 (1971). Such special verdicts or interrogatories are generally thought to harm the criminal defendant by putting pressure on the jury to report its deliberations or support its verdict. See United States v. Coonan, 839 F.2d 886, 891 (2nd Cir. 1988); United States v. O'Loonev, 544 F.2d 385, 392 (9th Cir. 1976). They are thought to "conflict with the basic tenet that juries must be free from judicial control and pressure in reaching their verdicts." United States v. Sababu, 891 F.2d 1308, 1325 (7th Cir. 1989); see United States v. James. 500 F.2d at 307.

Thus, it was not error for the District Court to refuse the Government's special interrogatories. The law's disfavor of special verdicts in criminal cases, in solicitude for the unique status of criminal defendants, is not outweighed by the Government's desire to minimize the risk of a new trial in the event that one of the Honduran "laws," upon which it chose to prosecute, is invalid.

*18 VIII.

THE JURY INSTRUCTION DEPRIVED MCNAB OF HIS RIGHT TO A UNANIMOUS VERDICT.

The Government (pgs. 45-49) makes no effort to distinguish the controlling Supreme Court decision, United States v. Richardson, 526 U.S. 813 (1999). Instead the Government argues, with no explanation whatsoever and against logic, that the Richardson decision is limited to the specific statute involved in the Richardson case. Richardson was premised on the constitutional requirement that a government not redefine crimes in ways that would permit juries to convict while disagreeing about means. 526 U.S. at 820. That is plainly the situation here. The Indictment, as constructively amended, charged violation of five discrete Honduran "laws." The conduct under each varied substantially: lobster size, reporting, unloading, egg-bearing, and packaging. The evidence at trial was in no sense overwhelming regarding whether these violations occurred, and if so whether McNab personally knew of or participated in the violations. Richardson directly holds there must be unanimity in finding any particular "foreign law" to have been violated.

The Government argues that the controlling case, United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), has been overruled by Schad v. Arizona. 501 U.S. 624 (1991), (Govt. Br. at 45 at n.23. Schad disagreed with the Fifth Circuit's concept for addressing whether separate offenses were charged, but in no way tampered with Gipson's holding that when separate offenses are charged, the jury must unanimously agree as to which offense was proved. In this case, the separateness of the charged Honduran law violations is indisputable and the Gipson holding applies. That Gipson remains the law in this Circuit is demonstrated conclusively by United States v. Atkinson, 135 F.3d 1563 (11th Cir. 1998), where this Court (a) applied Gipson to reverse a conviction and (b) determined that a Gipson violation is plain error. Id. at 1377-1378.

*19 The Government argues that McNab is estopped from raising the argument as "invited error." In no way did McNab "invite" the District Court's error in failing to give a "unanimous verdict" charge. The Government again refers to its special verdict "estoppel" theory. The Court's decision not to use the special verdict form has no bearing upon its separate failure to give a "unanimous verdict" charge as to the underlying foreign laws.

IX.

THE SECTION 1956(A)(I)(A)(I) VIOLATION WAS NEITHER PROPERLY CHARGED NOR

PROVEN BY SUFFICIENT EVIDENCE.

A. Inadequacy of Charge to Jury

In his initial brief McNab argued that the Court's minimal instruction on the elements of § 1956(a)(1)(A)(i), combined with the prosecution's misleading statement of the elements of that crime, denied McNab's right to a verdict by a jury fully informed of the Government's burden of proof (pgs. 53-55). The Government in response simply argues that it was enough for the Court to recite the statutory elements of the 1956(a)(1)(A)(i) violation and ignores the prosecutor's statements to the jury (Govt. Br. at 50-51). The Government does not contest the proposition that a prosecutor's uncorrected misstatement of the elements of a crime can taint a verdict by constructively amending the indictment. United States v. Behety, 32 F.3d 503,508 (11th Cir. 1994). In this case, the Court's bare mention of "promotion" without any explanation did not overcome the prosecution's misstatement of the money laundering requirements. The jury was left substantially unguided as to what was required to prove the § 1956(a)(1)(A)(i) conspiracy.

B. Insufficiency of Evidence

In its discussion of the sufficiency of the evidence on this charge, at pgs. 63-66, the Government ignores the absence of any evidence from which the jury could conclude that McNab used those monies to promote any underlying illegal activity. The focus of § 1956(a)(1)(A)(i) is *20 "downstream" - use for promotion of illegal activity. As to McNab, the inquiry must be what became of the monies after they were wired into his bank account. The only evidence in this regard was the stipulation that the funds McNab received were used for "general business personal expenses." Nothing more. The Government wants to look upstream, i.e., to determine McNab's liability for "promotion," we should look not at what he did with the money but with what other defendants did with it. The Government's cited authority, United States v. Wilson. 249 F.3d 366 (5th Cir. 2001), is completely inapt. In Wilson the Government proved that the payments to a co-conspirator had a "promotional" purpose. Nothing in Wilson suggests that where there is a total absence of proof regarding promotional payments by the defendant, that it is appropriate to look "upstream."

Finally, the Government's application of the "harmless error" standard is erroneous. Citing Neder v. United States, 521 U.S. 1 (1999), the Government contends that, to establish that the alleged error in this case was not harmless, "McNab would have to show that his shipments did not violate any valid Honduran law set forth in the jury instructions" (Govt. Br. at 48). The Government stands the Neder rule on its head. Under Neder, if it is demonstrated that a "reasonable doubt" exists as to whether a rational jury would have found McNab guilty "absent the error," (i.e., if the Court had properly charged the jury to unanimously agree on the laws they concluded were violated), then the error was not harmless. There is certainly a reasonable doubt whether the jury would have convicted McNab if they had properly been charged to convict only if they unanimously agreed on the violation of a particular law or laws.

*21 X.

THE GOVERNMENT REPRESENTED TO THE DISTRICT COURT THAT IT WAS NOT CHARGING MCNAB WITH AN UNLOADING VIOLATION

At the foreign law hearing, McNab objected to any determination being made with respect to Article 30 (unloading in port) because there was no reference to such in the indictment (R 19-32). Similarly, none was contained in the Second Superseding Indictment issued after the hearing (R3-183). At the hearing, Government counsel explained why the requested determination was appropriate as follows:

"Your Honor. Article 30 is not charged in the Indictment. The defense counsel is correct about that .... It is a relevant issue. It simply isn't charged as a crime .... We do not intend to add it on the Superseding Indictment."

(R 19-36-37) (emphasis added). The District Court saw no harm in determining Honduran law with respect to "unloading" since the Government was "not basing any count against the Defendants as to this particular violation of this particular article." (R 19-37).

At a pre-hearing on October 13, 2000, McNab again noted that violation to Article 30 was not charged in the recently filed Second Superseding Indictment. The District Court replied:

"I certainly do not expect you to defend against anything that is not included in the Indictment. If it's not in the Indictment, they're not going to be able to charge you with a violation of it."

(R 23-10). In spite of all of this, the jury was ultimately charged that it could convict McNab of conspiracy, money laundering, Lacey Act, and Smuggling Act violations for not "unloading in port" (R33-1589).

Now the Government argues that the indictment did contain allegations of unloading violation. The Government cannot represent to the District Court that its Indictment does not charge McNab with violation of Article 30 and then argue to this Court that, if you read it carefully enough, *22 you can find such allegations. See New Hampshire v. Maine, 532 U.S. 742 (2001) (discussion of judicial estoppel).

XI.

THE DISTRICT COURT ERRED IN EXCLUDING MCNAB'S EVIDENCE OF LACK OF A "KNOWING"

VIOLATION

The Lacey Act requires a "knowing" violation of law. The Government, on the one hand, was allowed to present a broad array of evidence to suggest that McNab possessed the requisite knowledge of the law, including hearsay, wealth, 404(b), Honduran affidavits and letters, etc. McNab, on the other hand, was prevented by the District Court from presenting his evidence in opposition thereto.

Prior to trial, the Court granted the Government's Motion in Limine prohibiting McNab from introducing evidence that the Honduran fisheries and customs departments inspected the "bulk" bags and determined they did not violate Honduran law. McNab argued that if "Digipesca doesn't consider this to be against the law, why should Mr. McNab have thought it was against the law ... if the people enforcing the law don't say there's anything wrong with it?" (R 23-42). The District Court refused to let it in. (R 23-42).

The District Court also granted the Government's Motion in Limine prohibiting McNab from presenting any evidence concerning the alleged Honduran "laws" which differed from the Court's foreign law determination. (R 23-43) stating: "I am saying what the law is." (R 23-43).

Consistent with the Court's orders in limine, McNab was prevented throughout the trial from introducing evidence directly or upon cross-examination of government witnesses along these lines. (R 25-177-178; 25-298; 26-543).

If this evidence had been admitted, the jury could have concluded that McNab had reason to believe that he was not violating Honduran law and/or reason to believe that the law afforded *23 some minimal tolerance level with respect to by-catch of undersized or egg-bearing lobster. The jury may well have determined that McNab had reason to believe that his lobster exports, pursuant to valid export permits and clearances, were legal.

The Government's Brief totally ignored the holding of U.S. v. Grigsby, 111 F.3d 806 (11th Cir. 1997), involving endangered species statutes. Those statutes, like the Lacey Act, required a "knowing" violation of law. The Eleventh Circuit reversed the convictions with instructions to grant acquittal based upon the defendant's reliance upon prior governmental action, inaction and/or statements concerning the laws at issue. The District Court believed "that the Grigsbys were aware of export/import law because of their taxidermy business." Id. at 813. However, the defendants were afforded the opportunity to present evidence supportive of the proposition that they relied upon Canadian export officials' acts and a publication from the U.S. Fish and Wildlife Service in proceeding as they did without criminal intent. The Eleventh Circuit reversed the conviction based upon that very evidence.

McNab was prohibited from introducing similar evidence showing lack of criminal intent or "knowing" violation. Every lobster boat in Honduras has some by-catch of "undersize" or "egg-bearing" lobster. If the Honduran fishery department did not consider 3% "shorts" to be in violation of the Honduran laws, this was evidence that McNab was entitled to show he didn't knowingly violate the law. Similarly, that the Honduran fisheries and customs department communicated to him no impropriety in the "bulk" export of lobster to the U.S. was admissible evidence. The District Court's determination of Honduran law is a distinct issue from the mens rea element under the Lacey Act. Grigsby makes clear that a defendant must be allowed to present such evidence:

"If the Grigsbys truly believed that moving the ivory tusks across the border did not violate United States law based on specific information in the Department of Interior Facts sheets on ivory, a trial exhibit, *24 then they could not have been convicted criminally under specific intent section 4224(a). The jurors should have been so instructed."

Id, at 821. "Confusion" as to the applicable law is indicative of the lack of a knowing violation:

"We particularly are troubled that, in their prosecutions and convictions, David Grigsby, a taxidermist, and Doris Grigsby, with a high-school education, neither of whom were shown to be cognizant of United States import/export law, were held to knowledge of the controlling law in this case that confused and confounded the District Judge, counsel, and even the United States Department of the Interior, Fish and Wildlife Service agent who implements the law and attempted to explicate it for the judge."

Id. at 822.

XII.

EVIDENCE OF REPORTING VIOLATIONS WERE INSUFFICIENT TO SUSTAIN CONVICTION UNDER

THE LACEY ACT.

It is apparent that the Government's charges against McNab for not filing landing reports for the 1998-1999 season were groundless. See McNab Brief at 40-41. In any event, the alleged violation should not be enforceable via the Lacey Act. As long as the lobster harvest itself was otherwise not unlawful, a technical reporting violation bears an insufficient nexus to the purposes of the Lacey Act. See S. Rap. No. 97-123, 1981 U.S.C.C.A.N. 1748, 1753 ("violation of [a hunting license law] in the course of taking wildlife in an otherwise lawful manner would not constitute a violation of this Act").