2002 WL 32595272 (11th Cir.)

For opinion see 331 F.3d 1228

United States Court of Appeals, Eleventh Circuit.

UNITED STATES OF AMERICA, Plaintiff/Appellee, v. Abner J. SCHOENWETTER, Defendant/Appellant.

Nos. 01-15148, 02-10810, 02-11264.

May 13, 2002.

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

Initial Brief

Martin A. Feigenbaum, Esq., Attorney for Defendant/Appellant, Abner J. Schoenwetter, 150 West Flagler Street, Museum Tower 1565, Miami, Florida 33130, (305) 372-0946

*i STATEMENT REGARDING ORAL ARGUMENT

Defendant/Appellant Abner J. Schoenwetter respectfully states that he believes oral argument in this case would assist substantially in the decision-making process of this Honorable Court. This is an appeal consolidated with an even larger and more complex appeal involving Honduran law, The Lacey Act, and other issues some of which may be of first impression in this Circuit.

STATEMENT OF TYPE SIZE AND STYLE

The Style Size used in this Initial Briefs is 14 point. The Style used is Times New Roman Regular.

STATEMENT OF APPEAL PREFERENCE

This appeal is entitled to preference because it is a criminal case in which Defendant/Appellant Abner J. Schoenwetter was convicted and sentenced to a term of imprisonment of 97 months.

*ii STATEMENT OF JURISDICTION

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

*iii 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 ... ii

Table of Contents ... iii

Table of Citations ... iv

Statement of the Issues ... 1

Statement of the Case ... 2

Summary of the Argument ... 20

Argument and Citations of Authority ... 21

I. The JUDGE Erred By Denying The ELLSWORTH MOTION Because Appellants Furnished The JUDGE With Honduran Authorities Which Demonstrated That Honduran Law Did Not Support The Lacey Act Violations For Which They Were Convicted ... 21

Conclusion ... 28

Certificate Of Service ... 29

*iv TABLE OF CITATIONS

CASES

Seguros del Estado, S.A. v. Scientific Games, Inc., 262 F.3d 1164 (11th Cir. 2001) ... 19

United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987) ... 10, 11

*1 STATEMENT OF THE ISSUE

I. WHETHER THE JUDGE ERRED BY DENYING THE ELLS WORTH MOTION WHERE APPELLANTS HAD PROVIDED THE JUDGE WITH UNDISPUTED HONDURAN AUTHORITIES SHOWING THAT HONDURAN LAW DID NOT SUPPORT THE LACEY ACT VIOLATIONS FOR WHICH APPELLANTS WERE CONVICTED.

*2 STATEMENT OF THE CASE

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

The first indictment in this case was handed down on May 25, 2000 by a grand jury sitting in the Southern District of Alabama. The indictment named as Defendants David Henson McNab ("MCNAB"), Robert D. Blandford ("BLANDFORD"), Abner J. Schoenwetter ("SCHOENWETTER"), and Diane H. Huang ("HUANG") ("DEFENDANTS"). R10-11. On June 23, 2000, Plaintiff United States of America ("Government") filed a motion in which it sought a pretrial determination on certain issues of foreign and state law pursuant to Fed. R. Crim. P. 12(b) and 26.1. The Government requested this determination because the charges were grounded mainly in alleged violations of Honduran fishing laws and regulations. R10-46.

On June 26, 2000, MCNAB filed a motion to dismiss due to improper venue and lack of jurisdiction. [FN1] R10-52. On July 6,2000, the Government filed its response to MCNAB's motion to dismiss due to improper venue and lack of jurisdiction. R10-79. On July 17, 2000, the Government filed a supplemental *3 motion relating to the pretrial determination of foreign and state law pursuant to Rules 12(b) and 26. R10-100. 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. R10-115,116. On July 28, 2000, the Government filed a reply to MCNAB's response to the supplemental motion for determination of foreign and state law. R10-122.

FN1. In the lower court, SCHOENWETTER expressly adopted and preserved for appeal MCNAB's extensive motions and arguments relating to jurisdictional and foreign law issues. See, e.g. R12-313, 315; R38-81-82; R39-95-96.

On July 28, 2000, a grand jury returned a superseding indictment. R10-121. On August 14,2000, the Government replied to BLANDFORD's response to the motion for pretrial determination of foreign and state law. R10-128. On September 7, 2000, MCNAB filed a motion to dismiss the superseding indictment. R10-151. The district court judge assigned to the case, The Honorable Richard W. Vollmer, Jr. ("JUDGE"), set a jury trial for the DEFENDANTS for the period commencing October 2, 2000. R10-142, 161, 162, 163.

On September 27, 2000, the Government filed another memorandum relating to its motion for a pretrial determination of foreign and state law. R11-182. On September 28, 2000, the grand jury returned a second superseding indictment which became the operative indictment for trial. R11-183. In this final version of the indictment, BLANDFORD was charged in counts 1,2-22, 26-39, 43, and 45. SCHOENWETTER was charged in counts 1,7-12, 44, and 46.

*4 A hearing on ail pending motions and the foreign and state law issues was conducted September 27-29, 2000. R19; R20; R21. On October 2, 2000, both the Government and MCNAB filed additional memoranda in support of their positions relating to the pretrial determination of foreign and state law. R11- 185, 186. On October 3, 2000, BLANDFORD and SCHOENWETTER were arraigned on the second superseding indictment. R11-189, 190. On October 5, 2000, MCNAB filed a supplemental memorandum on the issue of foreign law. R11-199. On October 12, 2000, the JUDGE entered an order wherein he concluded the Government had met its burden of establishing the validity of Honduran law to be applied against the DEFENDANTS. R11-209. The JUDGE also denied MCNAB's motion to dismiss the second superseding indictment. R11-209.

On October 16, 2000 the jury trial commenced. R24-5. On October 25, 2000, the Government rested. R31-1294. Each of the DEFENDANTS moved for a judgment of acquittal which the JUDGE denied. R31-1301-04. Prior to the JUDGE ruling on those motions, the Government admitted there wasn't sufficient evidence relating to the charges of shrimp and lobster closed season violations. R31- 1306. The JUDGE struck these violations from consideration by the jury. R31- 1308; R32-1317. In his defense case-in-chief; MCNAB called one witness, the captain of the CLIPPER, to testify about that vessel's operations. R32-1318- 1407.

*5 Trial ended on November 3, 2000 when the jury returned a verdict of guilty as to each of the DEFENDANTS. R36-1686-1715. SCHOENWETTER was found guilty on each of the counts in which he was charged. R11-249; R35-1701-05. The DEFENDANTS each moved for a new trial. R11-240, 241, 242, 243. The Government filed responses to the motions for new trial. R12-257, 258, 259, 260. On December 13, 2000, SCHOENWETTER and BLANDFORD filed motions to dismiss counts 44, 45, and 46 of the second superseding indictment relating to obstruction of justice. R12-262. On December 15, 2000, the JUDGE entered an order dismissing these counts. R12-265.

On December 15, 2000, MCNAB filed the original Spanish version of the annulment petition to the Supreme Court of Honduras relating to a portion of the Honduran law utilized by the Government against DEFENDANTS. R12-266, 267. On January 16, 2001, the JUDGE entered orders denying DEFENDANTS' motions for new trial. R12-270, 271, 272, 274. OnMay 22, 2001, MCNAB filed a motion to dismiss certain counts for failure to charge a crime. R12-307. BLANDFORD and SCHOENWETTER adopted this additional motion to dismiss. R12-313, 315. MCNAB made a supplemental filing of documents relating to the current status of applicable Honduran law, including the annulment action, repeal of the hygiene regulation, and changes in the fishing laws. R12-324, 325, and 326. On June 20, *6 2001, MCNAB filed his reply to the Government's opposition to his motion to dismiss regarding these foreign law issues. R1 2-327.

On June 26, 2001, the JUDGE denied MCNAB's motion to dismiss for the reasons argued in the GOVERNMENT'S response. R12-328. On July 13, 2001, SCHOENWETTER filed his position, including objections, to the presentence investigation report ("PSI"). R12-332, 335. On Jury 16, 2001, MCNAB filed a motion to dismiss, for new trial, and for redetermination of foreign law. R12-336. MCNAB also requested that oral argument be set on the alternative motions based on the significant Honduran law developments. R12-337. On July 17, 2001, BLANDFORD filed his position regarding sentencing factors, including objections, to the PSI. R12-339. 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. R12-341. On July 20, 2001, SCHOENWETTER filed his motion to adopt MGNAB's alternative motions based on Honduran law developments, motion to dismiss, and motion for new trial. R12-342. On July 23, 2001, BLANDFORD made a similar motion to adopt. R12-346.

On July 26, 2001, the JUDGE entered an order setting a hearing for August 17, 2001 relating to all pending motions, including the motions for reconsideration of the prior determination of foreign law. R12-350. On July 26, 201, the *7 Government responded to SCHOENWETTER's position, including objections, relating to his PSI. R12-358. On July 26, 2001, the Government also filed its position relating to BLANDFORD's PSI. R12-359. The JUDGE granted BLANDFORD's motion to adopt motions of the other DEFENDANTS, including the motions to dismiss, for new trial, for re-determination of foreign law. R12-360. The JUDGE entered his notice of tentative findings relating to the PSI on August 1, 2001. R12-369,370. On August 2, 2001, the GOVERNMENT responded to MCNAB's motion for reconsideration of prior determination of foreign law, motion to dismiss, and motion for new trial which had been adopted by SCHOENWETTER and BLANDFORD. R12- 350, 360.

On August 2, 2001, the Court conducted BLANDFORD's sentencing hearing and orally pronounced sentence. R37-1-64. On August 3, the JUDGE commenced SCHOENWETTER's sentencing hearing and concluded it on August 7, 2001. R38-1-89; R-39-90-119. On August 14, 2001, the Government filed an additional response to the motions relating to Honduran law on August 14,2001. R12-387. On August 15, 2001, SCHOENWETTER filed his post-sentence motion for new trial together with a memorandum of law in support. R12-385, 386.

On August 17, 2001, the JUDGE conducted a hearing as to all pending motions for new trial, for reconsideration of the prior determination of foreign law, *8 and for motions to dismiss relating to changes in Honduran law. R41-1-73. On August 28, 2001, the JUDGE entered a written judgment for JSCHOENWETTER on the sentence he orally had pronounced on August 7, 2001. R12-393. The JUDGE sentenced SCHOENWETTER to a sixty-month prison term to run concurrently as to counts 1 and 7-11. The JUDGE also sentenced him to a consecutive term of imprisonment of thirty-seven months as to count 12 for a total period of incarceration of ninety-seven months. The JUDGE imposed a term of supervised release of three years to run concurrently as to all counts. He also caused $100,000 deposited by SCHOENWETTER with the clerk of the court to be forfeited to the Government and imposed a fine of $15,000. R12-381, 393; R39-98-101.

On August 28, 2001, the JUDGE sentenced BLANDFORD to a term of imprisonment of 97 months, consisting of 60 months to run concurrently as to each of counts 1- 22, twelve months on counts 26-27, and 97 months on counts 28-39 and 43, all such terms to run concurrently. The JUDGE also sentenced BLANDFORD to a three-year term of supervised release to run concurrently on all counts, imposed a fine of $15,000, and a forfeiture to the Government of $100,000 he had on deposit in the court registry. R12-381, 395.

On August 28, 2001, the JUDGE entered a judgment as to MCNAB, sentencing him to a prison term of 97 months, consisting of 60 months on counts 1-12, *9 28-43, all terms to run concurrently. The JUDGE also imposed a term of supervised release of three years to run concurrently with a special condition of deportation, special assessment of $28,000, fine of $100,000, and a forfeiture of $800,000. R12-381, 396. On August 14, 2001, the JUDGE sentenced HUANG to 24 months of incarceration, consisting of twenty-four months on counts 1, 13-27, and 47, all terms to run concurrently, supervised release of three years, and a $10,000 fine. R12-294. [FN2]

FN2. HUANG received a downward departure from her Guidelines sentence based upon substantial assistance to the Government pursuant to USSG 5K1.1. R12-374,377394.

The JUDGE denied all of DEFENDANTS' pending motions heard on August 17, 2001, including the motions based on Honduran law developments, to dismiss, for new trial, and for reconsideration of prior determination of foreign law. R12-397. On September 4,2001, SCHOENWETTER filed a timely notice of appeal. R12-405. On September 9, 2001, BLANDFORD filed a timely notice of appeal. R12-403. MCNAB and HUANG also filed timely notices of appeal. These appeals were assigned Case No. 01-15148 which is consolidated with the instant appeal.

After the first appeal was underway, MCNAB obtained additional documents from Honduras which impacted whether a lawful conviction had been obtained against each of these Defendants/Appellants (hereafter "APPELLANTS") based *10 upon Honduran law. MCNAB requested that the district court review these materials and made several filings to that end. On January 9, 2002, pursuant to the authority of United States v. Ellsworth. 814 F.2d 613 (11th Cir. 1987), MCNAB filed a Motion for Order Certifying Intention to Grant New Trial Upon Remand ("ELLSWORTH MOTION"). Doc 415. On January 17, 2002, MCNAB made a Supplemental Filing in Support of his ELLSWORTH MOTION. Doc 416. On January 24, 2002, BLANDFORD and SCHOENWETTER each filed a Motion to Adopt the ELLSWORTH MOTION. Doc 417, 418.

On January 31, 2002, the JUDGE entered an order denying the ELLSWORTH MOTION. Doc 419. On February 7, 2002 SCHOENWETTER and BLANDFORD filed notices of appeal as to that order. Doc 423, 424. On February 6, 2002, MCNAB filed his Motion for Reconsideration of the ELLSWORTH MOTION [FN3] which SCHOENWETTER and BLANDFORD adopted. Doc 421, 429, 430. On February 8, 2002, MCNAB filed the affidavit of Nicolas Cruz Torres as additional evidence support for his Motion for Reconsideration. Doc 426. On February 13, 2002, the JUDGE entered an order granting MCNAB's Motion for Reconsideration. Doc 427. On March 1, 2002 the JUDGE entered an order *11 affirming that he would not enter an order certifying its intention to grant a new trial. Doc 433.

FN3. Reference to the ELLSWORTH MOTION incorporates the substance and exhibits contained in the Motion for Reconsideration for purposes of assigning the error set forth in Issue I of this Initial Brief.

In its Order dated December 26, 2001, this Honorable Court denied MCNAB's Motion for Judicial Notice of Honduran Appeals Court Decision and of a New Honduran Statute. It also denied MCNAB's Alternative Motions Regarding Newly-Issued Honduran Legal Opinions. However, the Court denied these Motions without prejudice and held that these Motion could be renewed if the district court refused to certify an intention to grant a new trial pursuant to United States v. Ellsworth, 814 F.2d 613 (11th Cir. 1987). The Court further stated that MCNAB's Honduran documents could be presented to the Court as an appendix pursuant to Fed. R. App. P. 32(b)(2) or as an addendum pursuant to Fed. R. App. P. 28(j).

On March 8, 2002, BLANDFORD and SCHOENWETTER filed timely notices of appeal from the JUDGE'S order denying the ELLSWORTH MOTION. Doc 437, 438. On April 2, 2002, BLANDFORD and SCHOENWETTER filed a Joint Motion to Consolidate Appeals. On April 23, 2002, this Honorable Court entered an Order consolidating Appeal Numbers 01-15148-J, 02-10810-JJ, and 02-11264-JJ and directed the Clerk of the Court to set an expedited briefing schedule for the last two appeal numbers.

*12 B. Statement Of The Facts.

This case arose from an investigation dating from on or about February 4, 1999. At that time, agents from the National Marine Fisheries Service ("NMFS") acted on information obtained from an anonymous source. R24-108. The source advised the NMFS that a vessel, the M/V Caribbean Clipper ("CLIPPER"), would be arriving soon in Bayou La Batre, Alabama. The source indicated that the CLIPPER was transporting a quantity of panulirus argus, a species of Caribbean spiny lobster, taken from Honduran waters. R24-108-09; R25-186; R31-1290.

The CLIPPER arrived in Bayou La Batre on February 4, 1999. R25-269. NMFS agents later determined that the vessel had transported approximately 72,000 pounds of lobster. R24-135. The importer was the Carribean Dream Company ("CDC"), a company owned by MCNAB. The consignee was Seamerica Corporation ("SEAMERICA"), a company owned by BLANDFORD. R25-264; R26-500. The lobster had been packed in bulk plastic bags on MCNAB's vessel. R24-118; R25-189; R28-784. The Government alleged that this product arrived in the United States without first complying with Honduran reporting requirements. It also claimed that the product did not undergo processing at an approved Honduran plant. R24-163-64. NMFS agents measured the size of the lobster tails and found a portion to be less than 5.5 inches. R25-190, 193, 195,258.

*13 SEAMERICA resold this product-to American Export-Import Corporation ("EXBVP") through HUANG. R26-551, 561-62; R30-1089. At times BLANDFORD worked with SCHOENWETTER in this business. 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 product at issue were transported by truck into Florida either before or after additional processing [FN4] . R27-626-28; R28-736; R30-1245. After the CLIPPER arrived in Bayou La Batre, Alabama NMFS agents seized the shipment and commenced a civil forfeiture proceeding. That proceeding was settled by the parties. R25-212-13.

FN4. 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 Government gathered evidence about numerous voyages made by the CLIPPER from Honduras to Alabama, and eleven of these voyages were included in the charges. R25-260. The Government also decided to include in the operative indictment two of the post-seizure shipments handled by SCHOENWETTER and BLANDFORD. The Government asserted that these DEFENDANTS were involved in some fashion in many other importations of the protected species. The Government claimed that these additional importations were the relevant conduct *14 for SCHOENWETTER and BLANDFORD. R12-358-17-20; R12-359-17-20.

The agents assigned to this case obtained a search warrant for SCHOENWETTER's residence where he kept business records. R25-231-39, 250-53, 259-283, 351-375. Agents working the case served a search warrant on BLANDFORD's company to obtain his business records. R29-1033-56; R30-1072-1141. The Government charged SCHOENWETTER in two counts with obstruction of justice, alleging that he failed to produce records required by the subpoena. R11-183-34-35. The Government included a count for obstruction of justice against BLANDFORD, alleging that he foiled to produce documents required by the subpoena. R11-183-34. 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. R12- 262,265; PSI-22; PSI-24. [FN5]

FN5. The docket sheet does not assign a number for the PSI. SCHOENWETTER shall designate a reference to his PSI as "PSF" followed by a page number.

The Government also assembled information about the financial transactions related to these seafood importations. The Government claimed that BLANDFORD conducted a number of financial transactions which constituted money laundering. It asserted that BLANDFORD used money paid to him by his customers to in turn pay MCNAB's businesses in this ongoing enterprise. BLANDFORD utilized wire *15 transfers and issued checks to accomplish this which the Government maintained was illegal because the funds were derived from underlying criminal activity. R29-1049-50;R30-1138, 1192-1200, 1211-15.

The Government used its evidence to charge BLANDFORD in the second superseding indictment: count 1 under the general conspiracy statute, 18 U.S.C. 371, the conspiracy having 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)(l)(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)(l)(A)(i). R11-183.

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. *16 In count 43, the Government charged BLANDFORD with conspiring to engage in 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). R11-183.

The Government named SCHOENWETTER in counts 1, 7-12, 44, and 46. Count 1 charged that beginning around August 4, 1995, and continuing until on or about May 10, 2000, SCHOENWETTER and his Co-defendants conspired to commit law violations with four different objects: a) knowingly importing into the United States spiny lobster tails and shrimp in violation of 18 U.S.C. 545 and 2 prohibiting unlawful importations; b) engaging in conduct involving the sale and purchase offish or wildlife in violation of foreign and state law pursuant to 16 U.S.C. 3372(a)(2)(A) and 3373(d)(1)(B)(the "LACEY ACT"); c) knowingly importing and exporting spiny lobster tails and shrimp in violation of the LACEY ACT; and d) knowingly conducting or attempting to conduct financial transactions known as money laundering in violation of 18 U.S.C. 1956(a)(l)(A)(i). In each of counts 44 and 46 the Government alleged that SCHOENWETTER obstructed justice by foiling to comply with federal grand jury subpoenas in violation of 18 U.S.C. 1503(a). R11-183. SCHOENWETTER was not charged in any substantive *17 money-laundering count.

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 rninimum tail size, protection of eggs, local authority inspections, reporting requirements, and packaging standards. R11- 209-4-6; R26-406-07, 500; R28-795; R29-876-81; R30-1239; R31-1273. The parties extensively briefed these foreign law issues, and filed supporting materials, over the course of months prior to the evidentiary hearing on the pretrial determination of foreign and state law. See, e.g., R10-46, 53, 87, 100, 105, 110, 113, 116, 117, 122, 125, 151, 178;R11-182, 185, 186, 194, 199.

Between September 27-29, 2000, the JUDGE conducted a hearing to consider the numerous submission of the parties. R19-1-51; R20-152-282; R21-283-405. The Government called as a witness Liliana Paz ("PAZ"), General Secretary of the Honduran Ministry of Agriculture and Livestock, to testify about the applicability of Honduran law to the lobsters at issue. R20-59-126. Among other things, PAZ testified about the existence of a minimum size requirement for the subject lobster tails. PAZ stated that Resolution 030-95 provided for a minimum abdominal length of 5.5 inches. R20-63. Sh£ also testified about Decree Number *18 154, The Fishing Law, which she stated was in force and resolution 0008- 93 relating to the industrial, hygienic, and health protection of fishery products. R20-65-66. The Government also called as a witness Paul Raymond ("RAYMOND"), an agent with the NMFS, to testify about enforcement of Honduran legal requirements under the LACEY ACT. R20-196-233. MCNAB called to testify as his first expert witness Saul Litvinoff ("LITVINOFF'), a professor at the Louisiana Law University. R20-126-151. LITVINOFF opined that the Honduran resolutions at issue had no binding legal effect because they were not properly issued under Honduran law. R19-130-34. MCNAB called another expert witness, Efrain Moncada Silva ("SDLVA"), a law professor fiom Honduras. R20-244-281. SELVA also concluded that the resolutions relied upon by the Government were nullities. R20-257-261.

The JUDGE entered an order on October 12, 2000, in which he ruled that the Government had met its burden on establishing the eight points of law in which it ground this prosecution. R11-209-1-27. At the trial held between October 16 and November 3, 2000, the Government called PAZ and RAYMOND as witnesses but not about matters relating to the application of Honduran law which already had been resolved in favor of the Government at the pretrial hearing. R27-654-671; R29-866-900. After trial, but before the sentencing hearings, MCNAB filed papers *19 relating Honduran law developments he maintained impacted the validity of the foreign law upon which the Government had relied to obtain DEFENDANTS' convictions. [FN6] R11-253; R12-266, 267, 300, 324, 325, 326, 327, 341. [FN7] MCNAB requested oral argument on these matters which the JUDGE granted. R12-337, 350. On August 17, 2001, the JUDGE conducted a hearing on DEFENDANTS' alternative motions to dismiss based on lack of jurisdiction, for new trial, and for reconsideration of prior determination of foreign law. R41- 1-68. On August 28, 2001, the JUDGE entered a fifteen-page order denying all of these motions as to each DEFENDANT. R12-397. [FN8]

FN6. SCHOENWETTER and BLANDFORD filed written motions to adopt these post-trial filings. R12-315, 342; R12-313, 346.

FN7. The Government filed responses to these papers. R12-322, 378, 387.

FN8. The JUDGE divided his ruling into three "points of law." In point 1, the JUDGE found that Resolution 030-95 (size limit) was still good Honduran law even though an Honduran court had annulled this law which would have retroactive effect in a criminal case. He concluded that the annulment action was not yet final because the Honduran courts had not yet disposed of that government's timely appeal of the annulment decision. R12-397-5-7.

C. Standard Of Review.

The standard of review for Issue I is de novo. Seguros del Estado. S.A. v. Scientific Games. Inc., 262 F.3d 1164, 1171 (11th Cir. 2001)(question of foreign law reviewed de novo)

*20 SUMMARY OF THE ARGUMENT

The JUDGE erred when he refused to grant the ELLSWORTH MOTION. APPELLANTS had furnished the JUDGE undisputed Honduran authorities from the highest levels of government responsible for interpreting Honduran law. These authorities clearly demonstrated that the Honduran resolutions and regulations, in which the Government grounded the Lacey Act violations, were null and void and without legal effect. As such, the JUDGE failed to apprehend that the convictions entered against APPELLANTS based upon Lacey Act violations also were null and void and without legal effect.

*21 ARGUMENT

I. THE JUDGE ERRED BY DENYING THE ELLS WORTH MOTION BECAUSE APPELLANTS FURNISHED THE JUDGE WITH HONDURAN AUTHORITIES WHICH DEMONSTRATED THAT HONDURAN LAW DID NOT SUPPORT THE LACEY ACT VIOLATIONS FOR WHICH THEY WERE CONVICTED.

A. Filing Of Additional Honduran Authorities As Record Evidence.

In support the ELLSWORTH MOTION, in early 2002, MCNAB furnished the JUDGE with legal authorities previously not available to the JUDGE in his prior reviews of Honduran law. Among these authorities were: a) a "Statement for the Record" by Dr. Francisco Rodas ("DR. RODAS"), General Director of an Honduran agency responsible for enforcing Regulation 0008-93; b) a letter from the Honduran Embassy to the United States; c) excerpts from a treatise on civil rights; d) an affidavit from an Honduran attorney, Dr. Nicolas Cruz Torres ("DR. CRUZ") and former Supreme Court Magistrate; e) Decree No. 198-2001; f) Resolution of Secretariat of Agriculture and Livestock dated November 16, 2001; g) an earlier statement by DR. RODAS dated January 11, 2002; and h) a letter dated November 28, 2001 from Liliana Paz ("PAZ"), Secretary General/SAG to Juan Alberto Lara *22 Bueso, Secretary General of the Secretariat of Foreign Affairs, and a letter dated December 3, 2001 from Elena Hilsaca DeGarcia to David Hernandez, Counsel General of Honduras. Doc 415, 416. The above additional record evidence shows that the JUDGE erred by failing to grant the ELLS WORTH MOTION as more fully discussed below.

B. The RODAS "Statements For The Record" Dated 1/11/02 and 1/25/02.

RODAS provided "Statements for the Record" dated January 11 and 25, 2002. Doc 416 (exhibit "G"); 421 (exhibit "A"). RODAS is the Director General of SENASA, the Honduran National Agricultural and Livestock Health Service. RODAS set forth material facts which impact Regulation 0008-93. This was the Honduran hygiene law which Plaintiff United States of America ("Government") maintained was a foreign law enforceable under the Lacey Act. [FN1] APPELLANTS argued in their Initial Briefs that this Regulation was a collection of industrial hygiene rules that had no "wildlife protection" objective. MCNAB Initial Brief at 14. [FN2] APPELLANTS also argued that this Regulation had been repealed prior to the *23 return of the operative Indictment. MCNAB Initial Brief at 26-27.

FN1. The Regulation provided for the packing of lobster product in plastic bags rather than cardboard boxes. (Folder 1, Ex. 28-Art. 49h).

FN2. SCHOENWETTER, BLANDFORD, and HUANG all adopted MCNAB's Initial and Reply Briefs pursuant to Fed. R. App. P. 28(i) and Eleventh Circuit Rule IOP-3.

At the foreign law hearing conducted by the JUDGE before trial, the Government relied on witness, PAZ, to support the notion that the Regulation had been enforced at times material to the Indictment. Yet, PAZ later recanted her testimony by way of a July 30, 2001 affidavit. The RODAS "Statements for the Record" provides, among other things, that 0008-93 "was not enforced by SENASA after January 13, 1995" because the underlying law "was repealed on that day by the Plant and Animal Health Law." Doc 416 (exhibit "G"); Doc 421 (exhibit "A").

RODAS speaks in an official capacity on behalf of the agency with responsibility for this area of Honduran law. His declaration that 0008-93 was "not enforced" after January 13, 1995, because the law upon which it was grounded was repealed, is the definitive proof about whether 0008-93 could support a Lacey Act charge. According to the person in charge of running the affairs of SENASA, it could not.

It is rhetorical to ask whether a foreign regulation, unenforceable in the foreign country because the underlying law was repealed, is enforceable in federal court to support a Lacey Act violation. Yet/this is exactly what happened to APPELLANTS. The only reason why ithappened is because the crazy-quilt of Honduran law and the conflicting testimony of the witnesses, presented to the *24 JUDGE over a period time was incapable of coherent meaning. It is readily apparent that the JUDGE made his foreign law rulings based upon assurances from the Government that the Honduran law presented to him was valid and could be applied to find Lacey Act violations. However, the proof offered to him by APPELLANTS, especially that post-trial, demonstrated that reversible error had occurred and, consequently, unlawful convictions had been entered.

C. Letter Of Official Position From The Honduran Government.

On January 23, 2002 the Honduran government itself provided additional support that APPELLANTS' conduct did not violate Honduran law. Doc 421 (exhibit "B"). The Honduran government, acting through its Washington, D.C. embassy, addressed the specific case of MCNAB, a citizen and resident of that country. The embassy provided the Department of State with documentation that Honduran laws were not violated. More specifically, the Honduran Ministry of Agriculture and Cattle Industry furnished a clarification of its official initial position that "laws of Honduras were not violated by [MCNAB]."

The Lacey Act is grounded in the fundamental principle that there must be a violation of a foreign wildlife or conservation law before the Government can charge and punish a defendant under United States law. The Government does not write nor interpret the laws of other sovereigns. Consequently, when the central *25 government of a foreign country officially declares that its laws were not violated, then the Government acts unlawfully by refusing to respect that official declaration. This particular evidence is not subject to argument that it is one Honduran government agency giving an opinion in conflict with another government agency. This is the central government of the sovereign foreign nation speaking about whether its laws were violated by APPELLANTS.

The JUDGE erred by refusing to recognize the import of this evidence. The JUDGE refused to consider the official Honduran government position in relation to its own laws. In so doing, the JUDGE turned his back on the sovereign's will and turned the Lacey Act upside down. In other words, the JUDGE permitted the Lacey Act to be utilized to convict and punish APPELLANTS without regard to the validity of underlying foreign law.

D. DR. CRUZ And Interpretation Of Legislative Will.

DR. CRUZ opined that Honduran interpretative laws express legislative will as intended when the laws were enacted originally. DR. CRUZ relied on the treatise entitled "Course of Civil Right." Doc 421 (exhibits "C" and "D"). Thus, when the Honduran legislature passed Decree No. 198-2001, its findings were deemed retroactive. Doc 416 (exhibit "E"). APPELLANTS argued that repeal of an Honduran law resulted in any regulations promulgated thereunder to be null and *26 void. MCNAB Initial Brief at 28 and Addendum 8. Consequently, Regulation 0008-93 was without any legal effect at the time it was utilized by the Government to support Lacey Act charges against APPELLANTS.

The Government failed to rebut the above evidence to show why Honduran law should be interpreted in a different manner. Yet, the JUDGE adopted the Government's unsupported position that 0008-93 still was good Honduran law. Again, it is a fair assumption that the JUDGE was baffled by the lack of coherence in the foreign laws, authorities, and testimony presented to him. As such, the JUDGE opted for adoption of the Government's position without the requisite legal support. In this fashion, his foreign law rulings were erroneous.

E. Resolution Of Secretariat Of Agriculture And Livestock Dated 11/15/01.

The JUDGE also failed to apprehend that the November 15, 2001 Resolution of the Honduran Secretariat of State in the Offices of Agriculture and Livestock. Doc 416 (exhibit "F'). This was additional undisputed evidence that Resolution 030-95, Regulation 0008-93, and Article 70 of the Fisheries Law could not be used to show violations of Honduran law by APPELLANTS. The Secretariat held that these Honduran "laws" were null and void and without legal effect. The Government had no evidence to counter this official position of the Honduran government. As such, the JUDGE went against not only the weight of the evidence *27 but all the evidence when he felled to grant the ELLSWORTH MOTION. [FN3]

FN3. It is readily apparent that PAZ concedes and gives deference to the Secretariat's findings. Doc 416 (exhibit "H"). Taking into account the foregoing, the Government never has provided any support for the proposition that the original position of its foreign law witness, PAZ, should be given any deference.

F. The JUDGE'S Refusal To Accept Authoritative Honduran Law Authorities Resulted In An Error Of Law Directly Causing A Gross Miscarriage Of Justice.

The history of this case is reminiscent of a runaway train. The JUDGE made initial findings at the pretrial foreign law hearing. At that time the JUDGE found a basis under Honduran law to permit the Government to proceed to prove the Lacey Act charges against the APPELLANTS. The train left the station. However, after trial the JUDGE refused to recognize the defects in the Honduran authorities upon which he had relied no matter what proof was offered in the post-trial proceedings. The train gathered steam. Rather than grant the ELLSWORTH MOTION, and put the brakes on what now had become a runaway train, the JUDGE opted to ignore undisputed Honduran law in favor of APPELLANTS [FN4] The train is still out of *28 control. APPELLANTS' only hope is for the members of this Honorable Court to find the brake, pull on it, and take time to study the true state of Honduran law. In so doing, they will give APPELLANTS a chance to be saved from an unnecessary crash and irreparable and unjust injury to their lives.

FN4. On August 28, 2001, the JUDGE ruled on APPELLANTS' post-trial motions setting forth why Honduran law failed to support their convictions. R12- 397. His order reflected doubt about the validity of 030-95 and 0008-93. With the ELLSWORTH MOTION, and its ample supporting evidence, the JUDGE had the opportunity to understand that his doubts were real. However, by failing to carefully consider the merits of the ELLSWORTH MOTION, the JUDGE clearly erred as to his interpretation of Honduran law.

CONCLUSION

It respectfully is requested that this Honorable Court reverse SCHOENWETTER's convictions grounded in Lacey Act violations. Alternatively, it respectfully is requested that this Court reverse the JUDGE'S denial of the ELLSWORTH MOTION and remand for further proceedings, including but not limited to, granting SCHOENWETTER a new trial with pretrial proceedings on the application of Honduran law to alleged Lacey Act violations.