United States v. McNab

2002 WL 32595274 (11th Cir.)

United States Court of Appeals, Eleventh Circuit.

UNITED STATES OF AMERICA, Appellee, v. David Henson MCNAB, Robert D. Blandford, Abner J. Schoenwetter, and Diane H. Huang, Appellants.

No. 01-15148.

June 19, 2002.

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

Nos. 02-10810-JJ & 02-11264-JJ.

Brief for the United States

Thomas L. Sansonetti, Assistant Attorney General

David P. York, United States Attorney

Maria Murphy, Assistant United States Attorney, Mobile, Alabama 36602

Elinor L. Colbourn, Todd S. Aagaard

Attorneys, U.S. Department of Justice, Environment & Natural Resources Div., P.O. Box 23795 (L'Enfant Station), Washington, D.C. 20026, (202) 514-2753

*iii STATEMENT REGARDING ORAL ARGUMENT

The United States believes that oral argument is appropriate in this case.

*iv TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES ... i

STATEMENT REGARDING ORAL ARGUMENT ... iii

TABLE OF AUTHORITIES ... vi

STATEMENT OF JURISDICTION ... 1

STATEMENT OF THE ISSUES ... 2

STATEMENT OF THE CASE ... 2

A. Nature of the case, course of proceedings, and disposition below ... 2

B. Factual background: summary of consultation with Honduran officials ... 5

SUMMARY OF ARGUMENT ... 15

STANDARD OF REVIEW ... 17

ARGUMENT ... 17

I. The defendants have neither argued nor showed that the documents submitted to the district court are "newly discovered evidence" within the meaning of Federal Rule of Criminal Procedure 33 ... 17

II. Even if the documents submitted by the defendants were newly discovered evidence, the defendants still would not have showed that the district abused its discretion by denying their motions for new trial ... 22

A. The Honduran inspection and processing requirement was not repealed ... 23

*v B. The Honduran size limit has not been retroactively invalidated ... 32

C. The Honduran prohibition against harvesting egg-bearing lobsters was not repealed ... 40

III. The United States consulted with senior Honduran officials throughout the investigation and prosecution ... 45

IV. This prosecution promotes fair and sustainable international trade ... 47

CONCLUSION ... 50

CERTIFICATE OF COMPLIANCE ... 51

CERTIFICATE OF SERVICE ... 51

ADDENDUM ... 52

*vi TABLE OF AUTHORITIES

CASES

Moody v. United States, 874 F.2d 1575 (11th Cir. 1989) ... 18

Rust v. Sullivan, 500 U.S. 173 (1991) ... 28

United States v. Borden, 10 F.3d 1058 (4th Cir. 1993) ... 31, 39

United States v. Christy, 3 F.3d 765 (4th Cir. 1993) ... 20

United States v. Cronic, 466 U.S. 648 (1984) ... 1

United States v. Danks, 357 F. Supp. 193 (D. Hawaii 1973) ... 20

United States v. Fuentes-Lozano, 580 F.2d 724 (5th Cir. 1978) ... 2

United States v. Garcia, 13 F.3d 1464 (11th Cir. 1994) ... 17

United States v. Granza, 427 F.2d 184 (5th Cir. 1970) ... 20

United States v. Lee, 68 F.3d 1267 (11th Cir. 1995) ... 18

United States v. Schlei, 122 F.3d 944 (11th Cir. 1997) ... 18, 21, 22

United States v. Shelton, 459 F.2d 1005 (9th Cir. 1972) ... 20

United States v. Smith, 331 U.S. 469 (1947) ... 17

United States v. Thomas, 887 F.2d 1341 (9th Cir. 1989) ... 39

STATUTES

1 U.S.C. § 109 ... 44

Lacey Act, 16 U.S.C. §§ 3371-3378 ... 3

16 U.S.C. § 3372 ... 3

*vii 16 U.S.C. § 3373 ... 3, 40

18 U.S.C. § 371 ... 3

18 U.S.C. § 545 ... 3

18 U.S.C. § 1956 ... 3

18 U.S.C. § 1957 ... 3

18 U.S.C. § 3231 ... 1

28 U.S.C. § 1291 ... 2

RULES

Fed. R. Crim. P. 33 ... 15, 17-20, 22

HONDURAN LAWS

Accord 1081-99 (Sept. 22, 1999) ... 28, 29, 31, 32

Agreement 0008-93 (Jan. 13, 1993) ... 23, 24, 26-32

Decree 154, art. 70(3) (May 19, 1959) ... 40-44

Decree 157-94 (Nov. 15, 1994) ... 23-26, 28, 31, 32

Decree 198-2001 (Nov. 30, 2001) ... 24, 25, 31

Decree 245-2000 (Dec. 29, 2000) ... 41-44

Decree 40 (May 16, 1973) ... 25, 31

Honduran Civ. Code art. 3 ... 26

Honduran Civ. Code art. 7 ... 26

*viii Honduran Civ. Code art. 44 ... 24

Honduran Const. art. 96 ... 14, 24, 34, 44

Honduran Law of Admin. Jurisdiction art. 32 ... 14, 33

Resolution 030-95 (Dec. 5, 1995) ... 7, 8, 14, 30, 32, 33, 35-40

OTHER AUTHORITIES

S. Rep. No. 97-123 (1981), reprinted in 1981 U.S.C.C.A.N. 1748 ... 49

*1 STATEMENT OF JURISDICTION

David Henson McNab, Robert D. Blandford, Abner J. Schoenwetter, and Diane H. Huang appeal from an order of the United States District Court for the Southern District of Alabama (Richard W. Vollmer, Jr., Judge) denying their motions for new trial. The district court properly exercised its jurisdiction over the new trial motions pursuant to 18 U.S.C. § 3231, even though the defendants' original appeals from their convictions and sentences already were pending in this Court. See United States v. Cronic, 466 U.S. 648, 667 n.42 (1984). The district court entered its order denying the defendants' new trial motions on January 31, 2002 (R-Supp. 1-419). [FN1] Blandford and Schoenwetter filed timely notices of appeal from the January 31 order (R-Supp.2-423; R-Supp.3-424). Each of the defendants filed a timely motion for reconsideration of the district court's January 31 order (R-Supp. 1-421; R-Supp.2-430; R-Supp.3-429; R-Supp.4- 431). On March 1, 2002, the district court, on reconsideration, issued an order reaffirming its January 31 order (R-Supp. 1-433). Each of the defendants then filed a timely notice of appeal from the district court's January 31 and March 1 orders (R- *2 Supp. 1-436; R-Supp.2-437; R-Supp.3-438; R-Supp.4-439). This Court consolidated the appeals on April 23, 2002. This Court has jurisdiction pursuant to 28 U.S.C. § 1291 over the defendants' appeals from the district court's orders denying their motions for new trial. See United States v. Fuentes-Lozano, 580 F.2d 724, 725-26 (5th Cir. 1978).

FN1. Citations in this brief to "R-Supp." refer to the supplementary volumes of the district court record compiled since the record for the defendants original appeal was certified and transmitted on January 3, 2002. Citations to "1st Br." refer to a defendant's opening brief in the original appeal or to the government's answering brief in the original appeal. Citations to "3d Br." refer to a defendant's opening brief in the instant appeals.

STATEMENT OF THE ISSUES

I. Whether the documents submitted by the defendants to the district court constitute newly discovered evidence within the meaning of Rule 33 of the Federal Rules of Criminal Procedure.

II. Whether, even if the documents were newly discovered evidence, the district court abused its discretion by denying the defendants' motions for new trial.

STATEMENT OF THE CASE

A. Nature of the case, course of proceedings, and disposition below

McNab, Blandford, Schoenwetter, and Huang participated in a scheme to import, sell, and purchase Caribbean spiny lobster tails from Honduras. They did so in a manner that knowingly violated several provisions of Honduran and Florida law - prohibitions against harvesting or possessing undersized lobsters and egg-bearing lobsters, and requirements for processing, landing, licensing, *3 and reporting. This illegal conduct across international and interstate lines, in turn, violated several federal laws.

All four defendants were convicted of conspiracy, 18 U.S.C. § 371. McNab, Blandford, and Schoenwetter were convicted of knowingly importing merchandise into the United States contrary to law in violation of 18 U.S.C. § 545. Blandford was convicted of violating the Lacey Act, 16 U.S.C. §§ 3371-3378, (1) by dealing in fish and wildlife that he knew were unlawfully taken, possessed, transported, or sold, 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1)(B); and (2) by dealing in fish and wildlife that he should have known were unlawfully taken, possessed, transported, or sold, 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(2). Huang was convicted of violating the Lacey Act (1) by dealing in fish and wildlife that she should have known were unlawfully taken, possessed, transported, or sold, 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(2); and (2) by falsely labeling fish or wildlife, 16 U.S.C. §§ 3372(d), 3373(d)(3)(A)(i). McNab and Blandford also were convicted of engaging in monetary transactions involving criminally derived property, 18 U.S.C. § 1957, and of conspiring to engage, in monetary transactions involving criminally derived property, 18 U.S.C. §§ 1957, 1956(h). In total, McNab was found guilty on 28 counts, Blandford on 37 counts, Schoenwetter on 7 counts, and Huang on 17 *4 counts. McNab, Blandford, and Schoenwetter received sentences of 97 months' imprisonment, and Huang was sentenced to 24 months.

Following the trial, the defendants submitted numerous motions for new trial and to dismiss (R4-240; R5-300, 336; R9-241, 313, 346; R11-242; R12-315, 342, 385; R15-243, 330, 344), all of which were denied (R5-270, 328; R6-397; R9-271, 275; R12-272; R15-361).

The district court entered final judgment with respect to all four defendants on August 28, 2001 (R6-396; R9-395; R12-393; R15-394). Each defendant filed a timely notice of appeal (R6-401; R9-403; R15-404; R12-405), The appeals were docketed in this Court as Eleventh Circuit No. 01-15148-JJ. Briefing on No. 01- 15148-JJ was completed on January 3, 2002.

On January 9, 2002, McNab filed a motion for new trial in the district court, asking the court to certify its intention to grant a new trial upon remand (R-Supp.1-415). Each of his co-defendants subsequently adopted McNab's motion (R-Supp.2-417; R-Supp.3-418; R-Supp.4-420). The district court denied the motions on January 31, 2002 (R-Supp.1-419). [FN2] Blandford and Schoenwetter filed timely notices of appeal from the January 31 order (R-Supp.2-424; R-*5 Supp.3-423). The appeals were docketed in this Court as Eleventh Circuit No. 02-10810-JJ.

FN2. The court denied the motions without awaiting or requesting a response from the government. It is apparently on this basis that the defendants mistakenly characterize their motions as "unopposed" (McNab 3d Br. 3-4; Huang 3d Br. 4).

In February 2002, each of the defendants filed a motion for reconsideration of the district court's January 31 order (R-Supp. 1-421; R-Supp.2-430; R-Supp.3- 429; R-Supp.4-431). On March 1, 2002, the district court, on reconsideration, issued an order reaffirming its January 31 order (R-Supp. 1-433). Each of the defendants then filed a timely notice of appeal from the district court's January 31 and March 1 orders (R-Supp. 1-436; R-Supp.2-437; R-Supp.3-438; R-Supp.4-439). This Court docketed these appeals as Eleventh Circuit No. 02- 11264-JJ.

On April 23, 2002, this Court issued an order that, inter alia, consolidated the defendants' three appeals and directed the Clerk to set a briefing schedule in Eleventh Circuit Nos. 02-10810-JJ and 02-11264-JJ.

B. Factual background: summary of consultation with Honduran officials

Our brief in the original appeal summarized (U.S. 1st Br. 8-11) the relevant facts that gave rise to the defendants' convictions. The brief filed by amici curiae the Embassy of Honduras and the Asociacion de Pescadores del Caribe, however, raises new allegations about the manner in which the United States government pursued its investigation and prosecution of the defendants. The thrust of the amicus brief is that, in prosecuting this case, the United States government failed to consult "responsible Honduran officials," and instead *6 intentionally sought out "minor officials who had not been authorized to render opinions on behalf of the Honduran Government" (Amici Br. 12). The following chronological summary provides the relevant background for our refutation of this allegation (infra pages 45-46).

1. Pre-seizure investigation

As noted in our brief in the original appeal (U.S. 1st Br. 10), the investigation in this case was triggered by an anonymous fax received by agents of the National Marine Fisheries Service ("NMFS") on February 3, 1999 (GX M43). The fax alleged that, on February 5, McNab's ship would be arriving in Bayou la Batre, Alabama, with a shipment of lobsters that contained "undersized (3&4 oz) lobster tails, a violation of Honduran law" (id.). The tip further alleged, "It is a violation of Honduran law, to export product in bulk, our law requires that all product exported from out country should be packed in boxes. These actions take jobs from our people, hurt our fisheries and our economy." (Id.)

On February 9, 1999, NMFS Special Agent Paul Raymond sent a formal request to Hector Maldonado, Deputy Director of the Bureau of Fisheries and Aquaculture ("DIGEPESCA"), seeking information regarding the legality of the lobster referenced in the anonymous fax (Add. tab 1, infra). The letter described in detail the status of NMFS' factual investigation into McNab's lobster shipment *7 (id.). It then asked DIGEPESCA to identify, based on the information conveyed in the letter, what if any Honduran laws the shipment had violated (id.). The letter asked DIGEPESCA to indicate in an official letter from its Director General whether, if it believed Honduran laws had been violated, it supported a Lacey Act prosecution of the individuals and companies responsible (id.). The letter closed by proposing a coordinated investigation of the lobster shipment and inviting a DIGEPESCA official to come to the United States to assist in the investigation (id.).

Arturo Echeverria Haylock, the Director General of DIGEPESCA, sent two letters in response to Raymond's inquiry. First, in a letter dated February 12, 1999, Director General Echeverria described some of the Honduran laws governing the lobster industry, including the landing requirement, the processing requirement, and Resolution 030-95, which states the size limit (Folder 1, ex. 24). The letter also offered to send two DIGEPESCA officials to the United States to assist in the prosecution (id.). The letter closed by thanking the National Oceanic and Atmospheric Administration (of which NMFS is a component) and the American Embassy for their cooperation in the case (id.).

In a second response letter dated February 25, 1999, Director General Echeverria stated that the product in question "has been illegally transported in violation of the Fishing Law, the Industrial and Hygienic Sanitary Inspection *8 Regulation for Fish Products and Resolution No. 030-95, authentic copies of which I have attached" (Folder 1, ex. 4). Echeverria further stated, "This Directorate General of Fishing and Aquaculture is ready to support all efforts that the Office of Enforcement may undertake to legally prosecute natives or legalized Americans that violate the articles of the Lacey Act" (id.). The letter closed by "[r]eiterating our position of support and thanking you for your collaboration in order that these situations do not continue to occur" (id.). This letter was copied to the Minister and Vice-Minister of Agriculture and Livestock (id.).

On March 1 and 2, 1999, NMFS agents seized the lobster referenced in the anonymous fax based on the aforementioned verifications by Honduran officials that the lobster was illegal under Honduran law (R24-124).

On March 12, 1999, Special Agent Raymond answered Director General Echeverria's February 12 and February 25 letters (Add. tab 2, infra). Raymond thanked Echeverria for his continued cooperation and updated him on the investigation (id.). Raymond also asked DIGEPESCA to send "two senior Honduran officials [to] visit the U.S. to participate in the investigation" (id.). The letter requested certain documents from DIGEPESCA pertaining to McNab's lobster shipments (id.).

*9 2. Further pre-indictment investigation

In early June 1999, NMFS Special Agent Gregg Houghaboom traveled to Tegucigalpa, Honduras, with Cynthia Fenyk, an attorney in the Office of General Counsel of the National Oceanic and Atmospheric Association (Folder 1, ex. 9). There they met with various Honduran officials from the Ministry of Agriculture and Livestock regarding the Honduran laws that regulate the lobster industry (id.). These officials included the Minister, Vice-Minister, Director General of DIGEPESCA, Director of Legal Services, Director of Legal Affairs, Secretary General, and Legal Advisor for the National Agricultural and Livestock Health Service ("SENASA") (id.). The Minister specifically endorsed Director General Echeverria's letter of February 25, 1999, in which he had pledged support for the investigation of McNab and cited the illegality of the seized lobster shipment (id.). The Honduran officials advised Houghaboom and Fenyk that the lobster NMFS had seized from McNab was illegally exported without first being inspected and processed (id.). The officials further confirmed that there was a 51/2-inch size limit for harvesting lobster tails and that all catches had to be reported to Honduran authorities (id.). The officials provided certified copies of the laws in question (id.).

In a letter dated July 7, 1999, Director General Echeverria responded in writing to a series of questions posed by the NMFS investigators, including a *10 description of the processing requirement, the size limits for lobster tails, and reporting and inspection requirements (Folder 1, ex. 8). This letter again verified that Honduras had laws restricting the harvest and exportation of spiny lobster (id.). Echeverria sent a copy of the letter to the Minister of Agriculture and Livestock (id.).

In late September 1999, NMFS agents inspected the lobster that had been seized earlier in the year from McNab's ship (R25-190). The inspection revealed not only that the seized lobster was unprocessed and contained undersized lobster tails, which the agents had suspected, but also that many of the lobsters were egg-bearing (R26-452-53, 500).

In late March 2000, pursuant to Director General Echeverria's commitment in his letter of February 12, 1999 (Folder 1, ex. 24), two Honduran officials came to Alabama to meet with prosecutors and investigators. Andres Roberto Valladares Sauceda, a legal advisor in the Bureau of Ministries, and Jose Bernardo Torres Umanzor, a legal advisor in the Ministry of Agriculture and Livestock, both provided written statements in English and in Spanish reconfirming the United States' government's understanding - based on the aforementioned meetings and communication with Honduran officials - that Honduran law governing the lobster industry established size limits, prohibitions *11 on taking egg-bearing lobsters, and processing and reporting requirements (Folder 1, ex. 5, 6). [FN3]

FN3. The amici contend that Valladares and Umanzor subsequently offered statements explaining "that they 'were not authorized' to give sworn affidavits on legal matters relating to fishing in Honduras" (Amici Br. 12 n.l 1). The statements to which the amici refer, however, merely state that Valladares and Umanzor signed their statements with the understanding that they were not "sworn affidavits" given "under oath" (Folder 4, ex. 8, 9). Neither Valladares nor Torres expressed any misgivings about the substance of their prior statements - which were prepared in both Spanish and English for them to review before they signed - or about their authority to explain Honduran fishing laws.

Based on this additional information and verification, as well as the additional factual investigation into the activities of McNab and his co-defendants, a federal grand jury returned an indictment against the defendants on May 25, 2000 (R1-11).

3. Post-indictment proof of Honduran law

In late September 2000, the district court held a hearing to assist in its determination of the foreign laws at issue in this case. The prosecution asked for a Honduran official to come to the hearing to testify regarding the applicable Honduran laws. In response, the Minister of Livestock and Agriculture sent Secretary General Liliana Paz, who was the Ministry's highest-ranking legal official (R19-75). Secretary General Paz testified as to the validity of various laws that apply to the lobster industry in Honduras, including the size limit, the

*12 prohibition against harvesting egg-bearing lobsters, and the processing and inspection requirement (R19-63-85). The United States filed certified copies of the laws in question that had been provided by the Honduran government (R6-185). Following the hearing, the district court ruled that Honduran law prohibits, among other things, (1) harvesting undersized lobster; (2) harvesting eggrbearing lobsters; (3) exporting lobsters without first having them processed and inspected; (4) harvesting lobsters without reporting the catch to Honduran authorities; and (5) exporting lobsters without first landing them in a Honduran port (R4-209).

The trial was held for two weeks in late October and early November 2000. Secretary General Paz again testified as a witness for the United States, this time to authenticate and to explain certain Honduran government records being admitted into evidence (R29-866-82)

4. Defendants' post-trial efforts to challenge the rulings on Honduran law

Following the trial, all four defendants filed a number of motions seeking to have their convictions overturned (R4-240; R5-300, 336; R9-241, 313, 346; Rl 1- 242; R12-315, 342, 385; R15-243, 330, 344). Among other arguments, McNab attacked the validity of three of the five Honduran laws underlying his convictions: the size limit, the prohibition against harvesting egg-bearing lobsters, and the processing and inspection requirement (R5-324, 325, 326, 336).

*13 In early August 2001, John Webb, Assistant Chief of the Wildlife and Marine Resources Section in the Justice Department, and agents from NMFS and the FBI traveled to Tegucigalpa to discuss McNab's most recent arguments in advance of a district court hearing on these issues. On August 10, 2001, Webb and the agents received affidavits from Secretary General Paz, from Vilma Cano Puerto, a legal advisor to SENASA, and from Jose Bernardo Torres Umanzor, a legal advisor to the Ministry of Agriculture and Livestock, confirming the validity of the laws McNab was challenging in the United States (R6-387, ex. C, D, E). In addition, the Minister of Agriculture and Livestock provided an affidavit stating that Paz, Cano, and Torres were authorized to provide advice on the enforcement and validity of fisheries laws (R6-387, ex. B).

The district court denied all of the defendants' post-trial motions (R5-270, 328; R6-397; R9-271, 275; R12-272; R15-361).

On August 27, 2001, Juan Arnaldo Hernandez Espinoza, the Fiscal General Adjunto of Honduras, [FN4] sent a letter to the U.S. Embassy in Honduras advising the embassy as to various matters of Honduran law related to the decision of the Honduran Court of Administrative Law on May 23, 2001, that *14 Resolution 030-95 was promulgated through a technically improper procedure (U.S. 1st Br., Add. tab 1). Among other things, Hernandez stated that the Honduran court's decision on its face applied only prospectively, and that this was consistent both with Article 32 of the Law of Administrative Jurisdiction and with Article 96 of the Honduran Constitution (id.). Hernandez concluded that the court's decision "does not free [McNab] from the sanctions that would have resulted from a failure to observe the contested resolutions" (id.).

FN4. The Fiscal General Adjunto, which translates as the "Assistant Prosecutor General," directs the office that oversees criminal enforcement of Honduran laws (U.S. 1st Br., Add. tab 1).

With their briefs in the original appeal from their convictions and sentences, the defendants submitted various new documents related to the Honduran law issues, including an appellate court decision affirming the prospective invalidation of Resolution 030-95, an advisory report from the Honduran Human Rights Commissioner adopting certain allegations by McNab, and a statement from the Minister of Agriculture and Livestock concurring with McNab's allegations (McNab 1st Br., Add. tabs 5, 10). In mid-December 2001, to assist in preparing the government's brief in the original appeal, Senior Trial Attorney Peter Murtha from the Wildlife and Marine Resources Section and agents from NMFS traveled to Tegucigalpa to discuss McNab's new documents with Honduran officials. Fiscal General Adjunto Hernandez confirmed his prior statement that the rulings of the administrative law courts regarding the size limit resolution had prospective effect only, that resolutions are routinely used in *15 Honduras to establish binding requirements of general applicability, and that penalties may be imposed for violations of those resolutions (U.S. 1st Br., Add. tab 2). The agents also met with Leo Valladares Lanza, the Human Rights Commissioner, who stated that he felt pressured by McNab's attorneys for a quick decision and that he had neither sought nor obtained any input from any party other than McNab prior to issuing his report (U.S. 1st Br., Add. tab 4).

SUMMARY OF ARGUMENT

The district court did not abuse its discretion by denying McNab's, Blandford's, Schoenwetter's, and Huang's motions for new trial. Because their motions were filed more than ten days after their guilty verdicts, under Federal Rule of Criminal Procedure 33 the only cognizable basis for a new trial motion would be newly discovered evidence. The defendants do not argue that they have proffered documents that meet the standard for newly discovered evidence under Rule 33. Their failure to do so is alone sufficient to require the affirmance of the district court's denial of the new trial motions.

Instead of attempting to explain how their documents constitute newly discovered evidence, the defendants simply reargue the legal issues presented in their original appeal, using this appeal to explain yet again why they now claim *16 that three of the five Honduran laws that they violated turned out to be invalid. [FN5] Even assuming arguendo that their documents constitute newly discovered evidence, their arguments are no more availing now than they were when they were briefed in the original appeal. In fact, the documents the defendants and their amici submit to support their arguments instead undermine those arguments through inconsistencies and internal contradictions.

FN5. The defendants have not challenged, either in the original appeal or now, the validity of the Honduran landing requirement or reporting requirement, both of which also were violated in this case (U.S. 1st Br. 7).

Thus, the arguments set forth in our brief in the original appeal continue to support the district court's rulings on the issues of Honduran law presented in this case. The defendants still have not proved that the Honduran laws that were violated were invalid. First, the Honduran National Congress did not implicitly repeal the Honduran regulation requiring that lobsters must be inspected and processed prior to exportation. When the National Congress repealed the statutory authority for this regulation, it replaced the old statute with an even stronger new statute that preserved the authority to regulate in this area. Second, the Honduran size limit for spiny lobsters remained in full effect until a Honduran administrative law court recently declared the limit invalid. In accordance with Honduran law, the judge's decision expressly limited itself to prospective effect. *17 Finally, the National Congress did not repeal a statutory prohibition against harvesting egg-bearing lobsters; the Congress merely amended the relevant statute to increase the penalties for certain violations.

STANDARD OF REVIEW

"A motion for new trial based on newly discovered evidence is committed to the sound discretion of the trial court and will not be overturned absent abuse of discretion." United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994).

ARGUMENT

I. The defendants have neither argued nor showed that the documents submitted to the district court are "newly discovered evidence" within the meaning of Federal Rule of Criminal Procedure 33.

Rule 33 of the Federal Rules of Criminal Procedure delineates the circumstances in which a district court may grant a new trial to a defendant in a criminal case. Under Rule 33, a court may grant a defendant's motion for new trial on one of two grounds: (1) a court may grant a new trial "in the interest of justice" if the motion is filed within seven days after the verdict; or (2) a court may grant a new trial on the basis of newly discovered evidence if the motion is filed within three years after the verdict. Fed. R. Crim P. 33. Rule 33 provides the only authority on which a court may grant a motion for new trial. United States v. Smith. 331 U.S. 469, 471 (1947).

*18 In this case, the defendants filed their motions for new trial in January 2002, more than fourteen months after the jury issued its verdicts in November 2000. Accordingly, the only potential basis on which the district court could grant a new trial would be newly discovered evidence.

Motions for new trial based on newly discovered evidence "are greatly disfavored and, thus, are viewed with much caution." Moody v. United States, 874 F.2d 1575, 1577 (11th Cir. 1989).

To succeed on a motion for new trial based on newly discovered evidence, the movant must establish that (1) the evidence was discovered after trial, (2) the failure of the defendant to discover the evidence was not due to a lack of due diligence, (3) the evidence is not merely cumulative or impeaching, (4) the evidence is material to issues before the court, and (5) the evidence is such that a new trial would probably produce a different result.

United States v. Schlei, 122 F.3d 944, 991 (11th Cir. 1997). "The failure to satisfy any one of these elements is fatal to a motion for a new trial." United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995).

None of the defendants makes any attempt to argue that the documents they submitted to the district court meet the requirements for newly discovered evidence under Rule 33. [FN6] Indeed, with the exception of Huang, who states the

FN6. The defendants submitted a total of twelve documents. Attached to McNab's new trial motion (R-Supp.1-415) were (1) a Special Report of Recommendations by the Honduran National Human Rights Commissioner, dated November 8, 2001; (2) a statement by Guillermo Alvarado Downing, Minister of Agriculture and Livestock, dated November 16, 2001; (3) a decision by the Honduran Court of Appeals for Administrative Law, dated October 15, 2001; and (4) Decree 198-2001, dated November 1, 2001. Attached to McNab's "Supplemental Filing" (R-Supp. 1-416) were (1) a somewhat different version of Decree 198-2001, dated November 30, 2001; (2) a somewhat different version of Alvarado's statement, dated November 15, 2001;, (3) a statement by Francisco Rodas, Director General of SEN AS A, dated January 11, 2002; and (4) two cover letters conveying Alvarado's November 15, 2002, statement to the Honduran Consulate in the United States. Attached to McNab's reconsideration motion (R-Supp. 1-421) were (1) a new statement from Rodas, dated January 25, 2002; (2) a cover letter from the Honduran Embassy to the U.S. Department of State conveying Alvarado's November 15, 2002, statement; (3) an excerpt from a 1961 Chilean textbook; and (4) an affidavit from Nicholas Cruz Torres, a Honduran attorney, discussing the Chilean textbook.

*19 standard for a new trial based on newly discovered evidence (Huang Br. 10) but then never explains how the documents in this case could satisfy that standard, the defendants do not even discuss Rule 33. Because the defendants have not argued that their documents meet the requirements for newly discovered evidence under Rule 33, the district court's denial of their new trial motions must be affirmed.

Even if the defendants had argued that their documents satisfy the prerequisites for newly discovered evidence under Rule 33, such arguments would be without merit. The documents that the defendants submitted to the district court with their new trial motions and subsequent filings fail to meet the standard for newly discovered evidence for several reasons.

*20 First, the defendants proffer the documents for the sole purpose of attacking the accuracy of the district court's jury instructions regarding Honduran law. Documents such as those submitted by the defendants, which record alleged developments in the law or merely state legal opinions in order to impeach the accuracy of a jury instruction, would not fall within the scope of newly discovered evidence under Rule 33. It is well-established, for example, that the results of a defendant's legal research are not newly discovered evidence under Rule 33. See, e.g., United States v. Christy, 3 F.3d 765 (4th Cir. 1993); United States v. Shelton, 459 F.2d 1005, 1007 (9th Cir. 1972); United States v. Granza, 427 F.2d 184, 186 (5th Cir. 1970). Nor are post-trial changes or developments in the law newly discovered evidence. Shelton, 459 F.2d at 1007; United States v. Danks, 357 F. Supp. 193 (D. Hawaii 1973). Thus, the documents proffered by the defendants are not newly discovered evidence within the scope of Rule 33.

Excluding documents that address purely legal issues from the scope of newly discovered evidence under Rule 33 makes ample sense. Were documents offered to impeach a district court's resolution of legal issues held to fall within the scope of newly discovered evidence under Rule 33, defendants would be able to turn every allegation of legal error into a cognizable claim of newly discovered evidence. This would eliminate the bright-line distinction that Rule 33 makes between claims of newly discovered evidence, which must be filed within three *21 years of the verdict, and claims of other types of error, which must be filed within seven days - and thereby would dramatically expand the scope of claims of error that could be asserted in a new trial motion filed more than seven days after the verdict.

Second, the documents submitted by the defendants were not "discovered" after trial despite the due diligence of the defendants to obtain them beforehand. Instead, the documents were created after trial, at the direct behest of, or otherwise in response to actions taken by, McNab's Honduran attorneys. The defendants have made no attempt to show that they attempted, but were unable, to procure the creation of these documents prior to the trial. Thus, even though some of the documents apparently post-date the defendants' trial, there is no reason to think that McNab could not have obtained these documents prior to his trial through reasonable diligence.

Third, the documents submitted by the defendants are cumulative of documents and testimony that they presented to the district court for the pretrial determination of foreign law and for the defendants' original set of new trial motions. [FN7] As explained in detail in our brief in the original appeal and infra in

FN7. As noted supra page 4, the defendants filed numerous unsuccessful motions for new trial after trial but before sentencing. Like the new trial motions that gave rise to this appeal, several of these motions attached documents challenging the district court's pretrial determination of foreign law.

*22 this brief, the documents that form the basis for the defendants' motions for new trial merely restate the conclusory assertions of legal opinion that constitute the sole support for the defendants' attempts to invalidate the Honduran laws that were violated in this case. Indeed, McNab concedes (McNab 3d Br. 30) that his new documents "merely confirm the credibility of McNab's evidence [originally submitted to the district court]." Merely cumulative evidence does not qualify as newly discovered evidence under Rule 33. Schlei, 122 F.3d at 991.

Instead of trying to explain how the district court erred by not certifying an intent to grant new trial upon remand, the defendants have simply restated the arguments already fully briefed at length in their original appeal. None of the defendants' briefs state any new arguments in support of their position that the Honduran laws that were violated were invalid and that the district court's jury instructions were therefore erroneous. Indeed, many of the documents that the defendants have submitted as the basis for their new trial motions were already submitted and discussed at length in the original appeal. See McNab 3d Br., Add., tabs 1-4. The defendants' arguments remain as meritless as they were when first briefed to this Court in the original appeal.

*23 A. The Honduran inspection and processing requirement was not repealed.

Each of the shipments of Honduran spiny lobster tails that the defendants imported were packaged in 70-pound bags of unsorted bulk lobsters (e. g., GX A10-55, A15-59, A23-67) in violation of Agreement 0008-93, which requires that lobsters must be inspected and processed in Honduras prior to exportation (R4- 209, at 22-26). The defendants and their amici argue (McNab 3d Br. 14-19, 30- 32; Blandford 3d Br. 22-27; Schoenwetter 3d Br. 22-27; Huang 3d Br. 20; Amici Br. 19-22), just as the defendants did in their original motions for new trial and original appeal (McNab 1st Br. 26-30; Blandford 1st Br. 44-45; Schoenwetter 1st Br. 47-48; Huang 1st Br. 20), that Agreement 0008-93 had been repealed in 1995 by Decree 157-94 and therefore that the inspection and processing requirement was not in effect during 1996-1999, when the shipments at issue in this case occurred. This is incorrect.

As we explained in our brief in the original appeal (U. S. 1st Br. 22-28), the enactment of Decree 157-94, which had the express purpose of strengthening Honduran regulation of plant and animal products, neither explicitly nor implicitly repealed Agreement 0008-93's inspection and processing requirement. Although Decree 157-94 explicitly replaced and repealed several existing statutes, it does not state that it repeals Agreement 0008-93. And under Article *24 44 of the Honduran Civil Code, Decree 157-94 could implicitly repeal Agreement 0008-93's inspection and processing requirement only if that requirement conflicted with Decree 157-94, which it does not.

The defendants and amici assert that five different documents undermine the district court's ruling that Agreement 0008-93 was valid during the period of time covered by the indictment: (1) Decree 198-2001, a new statute enacted in November 2001 (McNab 3d Br., Add. tab 4); (2) an affidavit from Nicholas Cruz Torres, a Honduran attorney (id. tab 7); (3) a November 16, 2001, statement by Guillermo Alvarado Downing, the Minister of Agriculture and Livestock (id. tab 3); (4) a January 11, 2002, statement by Francisco Rodas, the newly appointed Director General of SENASA (id. tab 5); and (5) a January 25, 2002, statement by Rodas (id. tab 6). In addition, the amici proffer a new statement from Sergio Zavala Leiva, the newly appointed Honduran Procurador General (Amici Br., Add. tab 2).

Decree 198-2001. Decree 198-2001 states that "the express total or partial repeal of a law leaves without legal value or effect the general regulations and the specific regulations... that the Executive Branch... has issued to implement the provisions of the repealed Law, unless there is an express provision to the contrary in the new repealing Law" (McNab 3d Br., Add. tab 4). The import of Decree 198-2001 was fully briefed in the original appeal, and the defendants and *25 amici merely restate their earlier arguments. As we explained in our brief in the original appeal, Decree 198-2001 does not support the defendants' position. First, Decree 198-2001 would not appear to apply to the situation that occurred here, because Decree 157-94 did not merely repeal Decree 40, the law under which Agreement 0008-93 was issued. Instead, Decree 157-94 preserved the Ministry of Natural Resources' authority to issue and enforce regulations governing plant and animal products, and simply replaced Decree 40 with a stronger statutory framework. It would make no sense for Decree 157-94 to have wiped out all existing implementing regulations in precisely the regulatory area it was meant to strengthen. Second, Decree 198- 2001 was enacted in November 2001, after the conduct at issue in this case, and therefore under Honduran law does not affect what Honduran law was during the period covered by the indictment. Cf. infra note 13.

Cruz's affidavit. The defendants attempt to use Cruz's affidavit to support their position that Decree 198-2001 should apply retroactively to benefit them. Cruz's affidavit has not previously been briefed or submitted to this Court. Cruz discusses an excerpt from a 1961 textbook of Chilean law and contends that the excerpt shows that, under Honduran law, a law enacted to interpret a prior law applies retroactively (McNab 3d Br., Add. tab 7). According to the defendants, this shows that this Court should give retroactive effect to Decree 198-2001 and *26 should use this new "interpretive law" to rule that Decree 157-94 repealed Agreement 0008-93 (McNab 3d Br. 31).

Cruz's affidavit is unavailing because his reasoning is specious. The Chilean textbook on which Cruz bases his opinion cites Article 9 of the Chilean Civil Code as the basis for its conclusion that a law enacted to interpret a prior law applies retroactively under Chilean law. The textbook paraphrases Article 9 as stating that "laws that limit themselves to stating the meaning of others are understood to be included in the latter" (McNab 3d Br., Add. tab 7). Cruz opines that this principle also applies in Honduran law, because Article 3 - not Article 9 - of the Chilean Civil Code and the Honduran Civil Code are identical; both articles state that the legislature has the authority to interpret laws (id.). Neither the Chilean nor the Honduran Article 3 has anything to do with retroactivity. And Cruz conspicuously fails to identify any provision of the Honduran Civil Code that corresponds to the relevant statement in Article 9 of the Chilean Civil Code on which the Chilean textbook relied. Indeed, there does not appear to be any such corresponding statement in the Honduran Civil Code (Add. tab 4, infra). Although Article 7 of the Honduran Civil Code addresses the same topic - retroactivity - as Article 9 of the Chilean Civil Code, and was based in part on the Chilean Article 9, Article 7 of the Honduran Civil Code specifically omits the statement in the Chilean Article 9 that gives retroactive *27 effect to interpretive laws (id.). Thus, Cruz's attempt to analogize to Chilean law fails.

Alvarado's statement. Alvarado's statement, prepared in response to the Human Rights Commissioner's Special Report of Recommendations, concurs with the Commissioner's allegations [FN8] and purports to "disqualify" a previous statement in which the Secretary General of the Ministry of Agriculture and Livestock had declared that Agreement 0008-93 was valid and enforceable against the defendants (McNab 1st Br., Add. tab 10). [FN9] This document, too, was fully briefed in the original appeal, and the defendants again merely restate their earlier arguments. As we explained in our brief in the original appeal, whereas the Secretary General's statement explained her opinions and supported them with citations to legal authority (R6-387, ex. C), Alvarado's statement offers only *28 cursory reasoning, does not explain why Alvarado now opines that the Secretary General's previously stated position is incorrect, and does not allege that the Honduran government stopped enforcing Agreement 0008-93. Accordingly, Alvarado's statement lacks credibility and deserves no deference. Cf. Rust v. Sullivan, 500 U. S. 173, 186-87 (1991) (an agency's change in interpretation should be accorded deference if it explains the change "with a reasoned analysis"). [FN10]

FN8. Our brief in the original appeal discussed the Human Rights Commissioner's role under Honduran law and the circumstances in which his report was produced (U. S. 1st Br. 26-27). As we explained, the report was issued at McNab's behest, based solely on information provided by McNab and without the independent investigation required by Honduran law.

FN9. Contrary to the defendants' assertions (McNab 3d Br. 8) that the Secretary General held an "essentially clerical" position and was only "coincidentally a lawyer," the Secretary General is the Ministry's top legal official (R19-65). At the time that the Secretary General offered her statements in support of the validity of the Honduran laws violated in this case, Alvarado had expressly declared that she was authorized to explain the "validity of Honduran laws, and especially the fisheries laws enforced by this Ministry" (R6-387, ex. B).

FN10. Contrary to Blandford's and Schoenwetter's assertions (Blandford 3d Br. 24; Schoenwetter 3d Br. 24), the fact that the Honduran Embassy sent a cover letter to the U. S. State Department forwarding Alvarado's statement at his request does not "itself provideQ additional support" for their position. Nothing in the cover letter indicates that it is intended to add any imprimatur to Alvarado's statement.

Rodas' statements. Rodas' statements have not previously been briefed or submitted to this Court. Rodas' first statement asserts (1) that Decree 157-94 repealed Agreement 0008-93 in 1995, and (2) that the provision in Accord 1081-. 99 that expressly repealed Agreement 0008-93 in 1999 was "not necessary" and was issued only because SENASA had not "considered" that Decree 157-94 already had repealed Agreement 0008-93 four years earlier (McNab 3d Br., Add. tab 5). Rodas' second statement asserts that SENASA did not enforce Agreement 0008-93 after January 1995, because Decree 157-94 repealed Agreement 0008-93 at that time (id. tab 6).

*29 Rodas' statements do not make sense. That the Ministry of Agriculture and Livestock in December 1999 issued Accord 1081-99, an administrative regulation that contains new inspection and processing requirements and expressly repeals Agreement 0008-93 (R6-387, ex. A, art. 124), demonstrates that until December 1999 the Honduran government considered Agreement 0008-93 to be valid and enforceable. Rodas' bald assertion that the Ministry only repealed Agreement 0008-93 in 1999 because it did not realize that it already had been repealed back in 1995 is absurd. And if Rodas were correct that the Ministry did not realize until after 1999 that Agreement 0008-93 had been repealed back in 1995, then it could not be that the Ministry stopped enforcing Agreement 0008-93 in 1995 because it believed that Agreement 0008-93 had been repealed.

Moreover, Rodas' assertion that SENASA did not enforce Agreement 0008-93 after January 1995 is directly contradicted by the record. In February 1999, the Director General of DIGEPESCA wrote to the Office of Enforcement in the U. S. National Oceanic and Atmospheric Administration "[r]eiterating [its] position of support" for the prosecution in this case and stating that lobster shipped by McNab to the United States earlier that month and seized by U. S. authorities (see U. S. 1st Br. 10) violated the inspection and processing *30 requirement (Folder 1, ex. 4). [FN11] At about the same time, McNab wrote a letter to the Director General asking DIGEPESCA to request the return of McNab's seized lobster shipment in the United States so that the shipment could be processed in Honduras in compliance "with all the requisites that the law establishes" (Folder 1, ex. 19). Clearly both the Director General and McNab considered the inspection and processing requirement fully effective and enforceable.

FN11. The Director General's letter also stated that McNab's ship had violated "the Fishing Law," which prohibits harvesting or selling egg-bearing lobsters, and Resolution 030-95, which prohibits harvesting undersized lobsters (id.).

In addition, in June 1999, a group of Honduran officials from the Ministry of Agriculture and Livestock - a SENASA legal advisor, other legal advisors in the Ministry, the General Director of DIGEPESCA, the head of the Ministry's Maritime Fisheries Department, the Ministry's Director of Legal Affairs, and the Ministry's Secretary General - met with agents from the U. S. National Marine Fisheries Service (R6-387, ex. D). The Honduran officials presented the agents with a copy of Agreement 0008-93, explained that it required lobsters to be processed before being exported from Honduras, and stated further that Agreement 0008-93 was in full effect (id.). In August 2001, a SENASA legal advisor again indicated, in an affidavit, that Agreement 0008-93 was effective *31 until expressly repealed in December 1999 by Accord 1081-99 (id.). At the same time, the Secretary General confirmed that "SENASA had routinely applied and enforced Agreement No. 0008-93... until December 2, 1999, when Agreement No. 0008-93 was expressly repealed by Accord No. 1081-99" (R6-387, ex. C). [FN12]

FN12. Contrary to the assertions of Blandford and Schoenwetter (Blandford 3d Br. 23; Schoenwetter 3d Br. 23), the Secretary General never "recanted" her testimony that the Ministry had enforced Agreement 0008-93 during the period in which the lobster shipments at issue in this case occurred.

Finally, official SENASA records for July 1998 to June 1999 show that the Ministry was applying the inspection and processing requirement during the period in which Rodas now states the requirement was not being enforced (Add. tab 3, infra). Rodas himself signed a letter forwarding these records to the Director of DIGEPESCA (id.), who in turn gave them to the prosecution in this case.

Zavala's statement. Zavala's statement opines that Decree 157-94 repealed Agreement 0008-93 by repealing Decree 40 (Amici Br., Add. tab 2, at 8). Although Zavala claims that this conclusion follows from a "longstanding principle of [Honduran] law," the only authority he cites for the purported principle is Decree 198-2001, enacted just last year. Zavala does not explain why, if the principle he invokes was "longstanding," the National Congress felt the need to enact a new statute to announce it. Nor does he explain why Decree

*32 157-94 would have wiped out all existing regulation in the regulatory area it was meant to strengthen, why Accord 1081-99 states that it repealed Agreement 0008-93 if Agreement 0008-93 had been repealed back in 1995, or why after 1995 Honduran officials repeatedly stated - and acted accordingly - that Agreement 0008-93's processing and inspection requirement was still in full effect.

Thus, none of the documents submitted by the defendants impeach the district court's ruling that Agreement 0008-93 was in effect during the period of time covered by the indictment. The defendants are still unable to explain why Decree 157-94, which was passed to strengthen regulation of plant and animal products, would instead wipe out all existing regulations in that area.

B. The Honduran size limit has not been retroactively invalidated.

Honduras prohibits harvesting, processing, or selling any spiny lobster with a tail length shorter than 5l/2 inches. Resolution 030-95, § 3(d) (Dec. 5, 1995) (R3-182, ex. 4). The defendants imported over 150,000 Honduran lobster tails that were smaller than 51/2 inches (GX M30; R26-500). The defendants and amici argue (McNab 3d Br. 6-14, 27-30; Blandford 3d Br. 26-27; Schoenwetter 3d Br. 26-27; Huang 3d Br. 17-20; Amici Br. 13-19), just as the defendants did in the original appeal (McNab 1st Br. 18-26; Blandford 1st Br. 42-43; *33 Schoenwetter 1st Br. 45-46; Huang 1st Br. 16-20), that the Honduran size limit "was never valid" and "was void ab initio."

As we explained in our brief in the original appeal (U.S. 1st Br. 31-35), although Honduran courts of administrative law, following McNab's conviction, have concluded that Resolution 030-95 was promulgated through a technically incorrect procedure, they also have made clear that this does not impact the application of the Honduran size limit to the lobster shipments at issue in this case. The Honduran court expressly stated that its ruling that Resolution 030-95 was incorrectly promulgated affected only the application of Resolution 030-95 in future cases: the court declared Resolution 030-95 "entirely voided, but this is only for purposes of [its] annulment and future inapplicability" (R5-324). As the Honduran Fiscal General Adjunto has explained, pursuant to Article 32 of the Law of Administrative Jurisdiction, the court's decision properly limited itself to "annulment and future non-applicability of the measure that is declared abrogated" (U.S. 1st Br., Add. tab 1). In other words, under Honduran law a technical defect, in the promulgation of an administrative measure renders the measure void for future application, not void ab initio. The court's decision thus does not retroactively legalize the shipments of undersized lobsters at issue in this case (id).

*34 The defendants and amici rely on Alvarado's statement (McNab 3d Br., Add. tab 3) to support their argument that the Honduran administrative court's decision applies retroactively. The amici also rely on Zavala's statement (Amici Br., Add. tab 2). In addition, the defendants offer more general arguments that assert theories not tied to any statement or Honduran legal authority.

Alvarado's statement. The defendants and their amici assert that Alvarado's statement (McNab 3d Br., Add. tab 3) shows that the Honduran court's decision inures to their benefit. As we explained in our brief in the original appeal (U.S. 1st Br. 32 n.13), however, Alvarado's conclusion was premised on the idea that the Honduran appellate court's decision "expands" the lower court's prospective ruling to give it retroactive application. This assertion cannot be true, since the appellate court merely issued a summary affirmance of the lower court decision. [FN13] In addition, Alvarado's statement gives no rationale *35 for why he disagrees with the previous position of his Secretary General (R6-387, ex. C) that the court's ruling had only prospective effect. [FN14]

FN13. Moreover, to the extent that Alvarado relied on Article 96 of the Honduran Constitution, his reasoning is incorrect. Article 96 states, "The Law does not have retroactive effect, except in penal matters when the new law favors the delinquent or the person that is prosecuted" (R5-336, ex. 1). As we explained in our brief in the original appeal (U.S. 1st Br. 33-34), (1) Article 96 may not apply here at all, since its reference to "The Law" does not necessarily apply to judicial declarations of the invalidity of an existing law, as opposed to the enactment or promulgation of a new law; and (2) if Article 96 did apply, it would preclude retroactive application of the court's decision, since no Honduran "penal matters" or criminal proceedings are involved in this case.

FN14. The amici contend (Amici Br. 16-18) that the Secretary General was never authorized to offer her interpretation of the Honduran court's decision and that her involvement in support of the prosecution "violatefd] the legal structure of Honduras" and "was irregular and illegal." In actuality, Alvarado himself provided an affidavit stating that the Secretary General was authorized to provide advice on the enforcement and validity of Honduran fisheries laws (R6-387, ex. B).

Zavala's statement. The amici argue (Amici Br. 15-16) that Zavala's statement explains why the Honduran court's ruling applies retroactively. But Zavala's reasoning is murky and inconsistent, and the amici's discussion of it even more so. [FN15] On the one hand, Zavala repeatedly states (id. Add. tab 2, at 6-8) that the court's ruling must apply to McNab because the court declared Resolution 030-95 void. Zavala also admits (id. at 7), however, that although the court declared Resolution 030-95 void, it limited its ruling to "future inapplicability" - i.e., prospective effect and enforcement of the resolution after *36 its decision became final. This explanation is consistent with the statements of Honduran officials that have been offered by the prosecution since the Honduran court first issued its decision (R6-387, ex. C, E; U.S. 1st Br., Add. tabs 1, 2). But Zavala then posits that, when the Honduran court limited its ruling to "future inapplicability," it actually meant that the ruling should apply not only to future conduct, but also to all existing enforcement cases that had not become final at the time that the decisions declaring Resolution 030-95 prospectively invalid became final. This opinion differs from any prior statement from a Honduran official offered by either the prosecution or the defendants. [FN16] If Zavala's reading of the court's decision reflected Honduran law, one of these Honduran officials - or, indeed at least one of McNab's Honduran attorneys - presumably would have offered it in the year since the Honduran court issued its decision. Zavala's interpretation is all the more suspect because he offers no authority to support it. [FN17] Finally, Zavala also states that the Honduran courts' rulings must apply *37 retroactively to legalize McNab's conduct, because "these decisions are of binding compliance" (Amici Br., Add. tab 2, at 7). The question, however, is not whether the Honduran courts' decisions are "binding," but what the decisions mean. Indeed, if the decisions are binding, then their rulings should be applied in accordance with the court's express limitation: "only for purposes of... annulment and future inapplicability."

FN15. For example, the amici cite Zavala's statement as supportive of their arguments, but then unwittingly attack Zavala's reasoning. As noted in the text, Zavala explains that; although the Honduran court declared Resolution 030-95 void, the court limited its ruling to "future inapplicability" (although he then goes on to state that currently pending cases fall within the scope of this limitation). The amici argue. (Amici Br. 15-16) that the Honduran court's decision cannot be limited to future effect, and that any position to the contrary is "a legal oxymoron" that is "legally and logically incompatible" with the court's decision (Amici Br. 15).

FN16. For example, the Fiscal General Adjunto specifically stated that the court's nullification of Resolution 030-95 applied "for future cases only" (U.S. 1st Br., Add. tab 2).

FN17. Even if Zavala were correct that the court's ruling applied to pending as well as future enforcement cases, this would not apply to this prosecution, which is not a Honduran enforcement case. Even McNab's action in the Honduran courts was a declaratory judgment action to invalidate certain Honduran fishing laws, not a defense to an enforcement action.

In addition to invoking Alvarado's statement, the defendants also offer more general arguments in favor of their position that the Honduran court's decision should retroactively legalize their conduct. First, the defendants contend (McNab 3d Br. 28) that the Honduran court's statement that Resolution 030-95 was voided "only for... future inapplicability" "merely prevents third parties, who have previously been charged with violating the Resolution, and have paid fines, from making any claims against the Honduran Government for enforcing an invalid law." The defendants cite no authority that supports this interpretation. Whatever the meaning of the Honduran court's statement that its decision "does not confer any rights to claims" (R5-324), nothing about that statement negates its express statement that Resolution 030-95 is voided "only for... future inapplicability." The court's decision makes no mention of the defendants' proffered limitation. Even Alvarado's statement, on which the defendants purport to rely, reads the court to have decided that Resolution 030-95 *38 was "totally rendered null and void, but only for the purposes of making them null and void and inapplicable in the future" (McNab 3d Br., Add. tab 3). Moreover, during the district court pretrial proceedings the defendants argued that, if a Honduran court annulled Resolution 030-95, that court's characterization of its ruling as retroactive or as prospective only should be conclusive of the issue (R23-15). This prior argument belies the defendants' current attempts to graft language onto the court's ruling in order to obscure its characterization of its ruling as prospective only.

The defendants also argue (McNab 3d Br. 29) that, were Resolution 030-95 a regulation of the United States declared by a court of the United States to be improperly promulgated, then the violation of Resolution 030-95 could not support their convictions. Assuming arguendo that this assertion is true, it proves nothing. Resolution 030-95 is a Honduran regulation, and McNab is attempting to cite a Honduran court's decision to show that Resolution 030-95 cannot apply to him. That decision expressly limits its reach to prospective application, consistent with Honduran law. See supra page 33.

The question presented in this case is not, as the defendants have argued (Huang 3d Br. 18), whether Resolution 030-95 was in effect at the time of their trial or their appeal. Instead, the issue is whether Resolution 030-95 was in effect at the time of the lobster harvest and shipments at issue in this case, so that *39 the lobster had been taken, possessed, transported, or sold in violation of Honduran law (and therefore the Lacey Act).

In fact, whether the defendants' conduct violates the Lacey Act due to a violation of Honduran law does not depend on whether the Honduran law could be enforced against the defendants. For example, courts affirm Lacey Act convictions arising out of violations of state law where the statute of limitations for the state law had expired prior to indictment. See United States v. Borden, 10 F.3d 1058, 1062 (4th Cir. 1993); United States v. Thomas, 887 F.2d 1341, 1348-49 (9th Cir. 1989). As the Fourth Circuit observed in Borden, "Although Lacey Act offenses are predicated upon violations of state law, the statute nowhere states that a viable or prosecutable state law violation is necessary to support federal charges." 10 F.3d at 1062. The same rationale applies to the foreign law violations at issue in this case: although the defendants' convictions are predicated in part on violations of Honduran law, the Lacey Act does not require a viable or prosecutable violation of Honduran law.

Thus, it is irrelevant that the defendants were denied a continuance to pursue their petition to annul Resolution 030-95 in the Honduran administrative law courts before their trial, because obtaining a Honduran court decision that prospectively invalidated Resolution 030-95 would not have changed the illegality of the defendants' prior conduct. See Huang 3d Br. 18 (asserting that the *40 government's objection to such a continuance somehow prejudiced the defendants). In order to avail themselves of a prospective-only order invalidating Resolution 030-95, the defendants should have obtained such an order before they began dealing in undersized lobsters. Instead, by dealing in lobsters that they knew (or, for certain counts of conviction, should have known) violated Honduran law, [FN18] the defendants assumed the risk that they would face enforcement action.

FN18. The jury instructions, consistent with the requirements of the Lacey Act's criminal enforcement provisions, required the jury to find, (1) for a violation of 16 U.S.C. § 3373(d)(1), that the defendants knew the lobsters were taken, possessed, transported, or sold in violation of Honduran law; or (2) for a violation of 16 U.S.C. § 3373(d)(2), that the defendants in the exercise of due care should have known the lobsters were taken, possessed, transported, or sold in violation of Honduran law (R33- 1593, 1595). Thus, for each of the Lacey Act convictions, the government proved not only that the defendants dealt in lobsters that violated Honduran law, but also that the defendants knew or should have known that the lobsters were taken and sold in violation of Honduran law.

C. The Honduran prohibition against harvesting egg-bearing lobsters was not repealed.

Article 70(3) of Honduras' Fishing Law of 1959 prohibits harvesting egg-bearing lobster or removing eggs from a lobster for profit (R4-209-17-19). The defendants imported Honduran lobster tails that either had eggs still on them or showed evidence that eggs had been deliberately removed from them (R26-452- 53). The defendants and amici argue (McNab 3d Br. 20-23, 33-35; Blandford 3d *41 Br. 26-27; Schoenwetter 3d Br. 26-27; Huang 3d Br. 20; Amici Br. 22-28), as the defendants did in the original appeal (McNab Br. 33-37; Blandford Br. 44-45; Schoenwetter Br. 47-48; Huang Br. 20-25), that article 70(3) was retroactively repealed in February 2001 by the enactment of Decree 245-2000.

As we explained in our opening brief.(U.S. 1st Br. 40-42), Decree 245-2000 did not repeal article 70(3)'s prohibition against harvesting egg-bearing lobster or removing eggs from a lobster for profit. Decree 245-2000 was enacted to increase penalties for ten different specific violations of article 70 and for other, nonspecified violations of article 70 (R5-326, ex. B, art. 1). Decree 245-2000 does not expressly repeal article 70(3), and, because Decree 245-2000 does not conflict with article 70(3), it could not have implicitly repealed article 70(3). Indeed, the fact that Decree 245-2000 contains a catch-all provision - which increases the penalty for "any other activity not expressly mentioned in the preceding items indicated with letters, but which is analogous" (R5-326, ex. B, art. 1) - demonstrates that Decree 245-2000 could not have been intended to roll back the 1959 law by prohibiting only those activities specifically listed in the new decree. The defendants' theory that Decree 245-2000 removed article 70(3)'s prohibition is patently inconsistent with Decree 245-2000's sole stated purpose of increasing the penalties for violations of article 70.

*42 The defendants' discussion of article 70(3) invokes Alvarado's statement (McNab 3d Br., Add. tab 3) and a statement from Gabriela Pinela de Arias, the newly appointed General Director of DIGEPESCA, that was not submitted to the district court (McNab 3d Br., Add. tab 8). The amici rely on these two statements as well as Zavala's statement (Amici Br., Add. tab 2).

Alvarado's statement. The defendants note (McNab 3d Br. 33) that Alvarado's statement purports to recant the prior testimony of the Ministry's Secretary General that Decree 245-2000 did not repeal article 70(3)'s prohibition against harvesting egg-bearing lobsters. But Alvarado's statement offers no explanation for this conclusion or for the Ministry's apparent change in position. Moreover, Alvarado's statement is based entirely on the idea that any prohibition from article 70 that is not specifically mentioned in Decree 245- 2000 "ceased to have validity when Decree 245-2000 went into effect" (McNab 3d Br., Add. tab 3). This opinion ignores the catch-all provision in Decree 245- 2000, which expressly preserves article 70's unnamed existing prohibitions.

Zavala's statement. The statement from Sergio Zavala Leiva, the newly appointed Honduran Procurador General (Amici Br., Add. tab 2), suffers from the same defects as Alvarado's statement. In fact, Zavala expressly bases his opinion on Alvarado's statement (id. at 9). Like Alvarado, Zavala premises his conclusion on the idea that the prohibition against harvesting egg-bearing lobster *43 must have been repealed because Decree 245-2000 does not specifically mention the prohibition - ignoring Decree 245-2000's catch-all provision (id.).

Pinela's statement. The defendants have submitted a new statement from Gabriela Pinela de Arias, the newly appointed General Director of DIGEPESCA, who opines that article 70(3) "only forbade the destruction or collection for profit of the spawn/eggs or young of fishes, chelonians, or other aquatic species, but not the destruction or collection of the egg-laying species" (McNab 3d Br., Add. tab 8). Zavala, in his statement, endorses Pinela's interpretation (Amici Br., Add. tab 2, at 9). Pinela's statement supports the plain-meaning interpretation of article 70(3) that was set forth in the jury instructions in this case, and is inconsistent with the defendants' apparently contrary interpretation. [FN19] According to Pinela, article 70(3) prohibits the destruction or collection for profit of eggs of aquatic species. Harvesting lobsters that bear eggs destroys the eggs. Any commercial harvesting of egg-bearing lobsters therefore violates article 70(3), even under Pinela's own interpretation.

FN19. As we noted in our brief in the original appeal (U.S. 1st Br. 38), the defendants have attacked the district court's interpretation of article 70(3), which follows the plain language of article 70(3), without explaining how they think article 70(3) should be interpreted. Moreover, McNab himself is on record as having instructed his boat captains that Honduran law prohibits capturing egg-bearing lobsters (R3-185, ex. 13).

*44 Finally, again as we explained in our brief in the original appeal (U.S. 1st Br. 41-42) even if Decree 245-2000 had withdrawn article 70(3)'s prohibition, it would not have retroactively legalized the lobster shipments at issue in this case. Article 96 of the Honduran Constitution provides that laws do not have retroactive effect except in penal matters (R5-336, ex. 1). This case does not involve any Honduran "penal matters" or criminal proceedings to which the retroactivity provision in Article 96 could apply. The only criminal proceeding is the United States' prosecution, to which the United States' retroactivity provisions apply. Under 1 U.S.C. § 109, a repealed statute "shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability."

Whether or not the defendants' scheme would be illegal in Honduras today is not an issue in this case. The activities in Honduras were illegal under then-existing Honduran laws. The importation of those illegal lobsters into the United States violated valid federal criminal laws of the United States. Any subsequent repeal of a relevant statute, whether of Honduras or of the United States, does not negate the validity of this prosecution. Indeed, as explained supra page 39, the Lacey Act does not require a viable or prosecutable violation of foreign law to support a conviction under the Act based on a violation of foreign law.

*45 III. The United States consulted with senior Honduran officials throughout the investigation and prosecution.

As noted supra page 5, the amici brief alleges that, in prosecuting this case, the United States government failed "to obtain evidence of Honduran law from the appropriate Honduran sources who were competent and empowered to give such evidence" and instead intentionally sought out "minor officials who had not been authorized to render opinions on behalf of the Honduran Government" (Amici Br. 11, 12). The summary of the extensive consultation that occurred between the United States government and the Honduran government and the strong expressions of support that the Honduran government expressed for this prosecution (supra pages 5-15) demonstrates that the amici's characterization of the history of this case bears no resemblance to actual events. The prosecution made every effort prior to filing any charges in this case to determine the underlying Honduran law from the authorized Honduran officials. Senior Honduran officials and their specifically designated and authorized subordinates advised the United States government repeatedly and consistently that under Honduran law it is illegal to harvest undersized lobster, that it is illegal to harvest egg-bearing lobster, and that all lobster harvested must be reported and processed prior to export. In addition, the officials expressed unequivocal support for the United States' investigation and prosecution of the defendants.

*46 It is apparent from the recent statements that the defendants and their amici have submitted from Honduran officials that McNab has been somewhat successful in getting the Honduran government to reconsider its support for this prosecution. Since these officials have never explained precisely how or why they have come to favor reconsidering their government's position, it is unclear whether this change has resulted from political pressure, the recent change in political administrations in Honduras, a disagreement with McNab's sentence, or a genuine belief that their government's earlier interpretations of Honduran law were in error. What is clear is that, as explained in detail in our brief in our original appeal and supra in this brief, the statements offered in support of McNab's arguments are conclusory, inconsistent and at times self-contradictory, and overall poorly reasoned. Under these circumstances, the defendants and their amici have provided no justification for this Court to set aside the district court's foreign law rulings.

The amici correctly point out (Amici Br. 11, 18-19) that, when the United States prosecutes someone for a crime that is premised in part on a violation of foreign law, it is incumbent on the United States to prove the foreign law through a fair and upright process, most commonly through official contacts with authorized representatives of the relevant foreign government. Contrary to the amici's mischaracterizations of the history of this case, that is exactly what *47 happened here. And thus the converse of the amici's proposition comes into play; when the United States carefully fulfills its obligations in this regard and proves the foreign law, the laws it has proven are due a strong presumption of validity. The fact that the United States consulted extensively with the Honduran government during the course of this prosecution and benefited greatly from the cooperation of a host of Honduran officials does not mean that the validity of the defendants' convictions are subject to the whims of the Honduran government's continuing support.

IV. This prosecution promotes fair and sustainable international trade.

The amici argue (Amici Br. 28-31) that the district court's interpretations of Honduran law undermine the international trading system by subjecting the Honduran lobster industry to criminal liability for conduct that complied with Honduran laws. The first and most obvious problem with this argument is that the defendants in this case did not comply with Honduran laws. In fact, the defendants knew that the lobsters they shipped were harvested and marketed in violation of Honduran law. See supra note 18. The United States readily agrees with the amici that, had Honduran laws been followed, the defendants should not face prosecution under the Lacey Act. Thus, the amici's contention is simply inapposite. *48 The amici's argument that the prosecution in this case impairs their interests is all the more problematic because they previously had actively supported the prosecution of the defendants and specifically stated that the defendants had violated Honduran laws. As noted supra pages 6-11, prior to indicting the defendants, the United States specifically asked DIGEPESCA, the Honduran agency charged with regulating fisheries, whether the lobster shipments at issue in this case violated Honduran law. Both the Director General of DIGEPESCA and the Minister of Agriculture and Livestock stated that the shipments were illegal under Honduran law. The Director General and the Minister also expressed support for the prosecution of the defendants.

Amicus APESCA, the Honduran fishing association, also provided assistance and expressed support for the prosecution. The President of APESCA, David Jones, met with Daniel Peters, an official from the U.S. Embassy to Honduras, and complained that McNab was taking undersized lobsters and harvesting lobster during the closed season (Add., tab 5, infra). Jones further stated that McNab's violations were inducing other, smaller owners to adopt similar practices in order to compete with McNab (id.). Jones asked Peters why the United States was not prosecuting more Lacey Act violations (id.). In December 1999, NMFS Special Agents Paul Raymond and Gregg Houghaboom interviewed Allan Shawn Hyde, Jr., and Allan Baxter Hyde, owners of a seafood *49 processing plant in Honduras and members of APESCA (Folder 1, ex. 23). In addition to providing the agents with information about the defendants, the Hydes reported that APESCA members were concerned with the lack of enforcement of lobster regulations and particularly concerned that McNab was damaging Honduran lobster fisheries by violating the regulations (id.).

Finally, the amici notably fail to mention the essential interrelationship between the Lacey Act and Honduran laws in the protection of Honduran lobster fisheries. The Honduran lobster laws expressly refer to the need to protect against the depletion of the nation's fisheries. See, e.g., Folder 1, ex. 1 ("lobsters have been harvested in an uncontrolled manner, causing major harm to this resource and consequently to the economy of Honduras"). The legislative history of the Lacey Act notes similar concerns:

The illegal wildlife trade has grim environmental consequences. It threatens the survival of many species of wildlife, particularly those which we value because of their aesthetic or commercial values. The economic consequences of this trade are also severe.

S. Rep. No. 97-123, at 1 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1748. Congress enacted the Lacey Act to "allow the Federal Government to provide more adequate support for the full range of State, foreign and Federal laws that protect wildlife." Id. at 4, 1981 U.S.C.C.A.N. at 1751. When the defendants imported and marketed Honduran lobsters that had been harvested and exported *50 from Honduras in violation of Honduran law, they threatened the vitality of Honduran lobster fisheries and undermined the efforts of those in the Honduran lobster industry who run their businesses in compliance with the law. Prosecuting the defendants for their misconduct therefore promotes fair and sustainable international trade, which is undeniably in the interests of both the United States and the amici.

CONCLUSION

For the foregoing reasons, the district court's order denying the defendants' motions for new trial should be affirmed.

Appendix not available.