17 Corporate Crime Reporter 45(1), November 24, 2003

SUPREME COURT URGED TO REVERSE EIGHT-YEAR PRISON TERMS OF LOBSTER DEALERS

Lobster importers and dealers convicted of smuggling undersized lobsters into the United States want the Supreme Court to overturn their eight-year prison sentences.

The Washington Legal Foundation took up their cause earlier this month and filed a petition for writ of certiorari with the United States Supreme Court on behalf of the three seafood importers and dealers seeking review and reversal of a lower court decision that upheld their convictions for importing "illegal" seafood.

Paul Kamenar, the attorney handling the appeal, called it a case of "outrageous over-criminalization of normal business activities."

"The seafood dealers were prosecuted and convicted for importing lobster tails from Honduras because they allegedly violated an obscure Honduran regulation requiring that frozen seafood be shipped in cardboard boxes instead of clear plastic bags, and because about three percent of the 70,000 pound shipment consisted of Caribbean spiny lobster tails that were less than 5.5 inches in length, which allegedly violated another Honduran regulation on size limits," Kamenar said. (See Interview, page 11)

The Honduran seafood exporter, David Henson McNab, was also convicted and sent to prison for eight years. A separate petition to the Supreme Court was filed on his behalf by Miguel Estrada of Gibson Dunn & Crutcher.

Because the seafood was shipped in clear plastic bags instead of opaque boxes, they were also charged with "smuggling," even though the shipments regularly went through Customs inspections and testing by the Food and Drug Administration at the port near Mobile, Alabama, Kamenar said.

Kamenar said that because the seafood importers paid McNab for the seafood they purchased in a normal commercial transaction, they were charged with money laundering.

All of these charges were predicated upon alleged violations of the Lacey Act, a federal law originally enacted in 1900 and amended by Congress in 1981, that makes it illegal to import any fish or wildlife that violates not only any United States law or regulation or any State law or regulation, but also "any foreign law."

Not satisfied with seizing the 1999 shipment and imposing heavy civil fines, prosecutors based felony criminal charges against the individuals primarily on Honduran regulations regarding size, packaging, and the handling of eggbearing lobsters.

Kamenar argues that the Honduran regulations that served as the predicate for the charges were later declared to be null and void, repealed, and otherwise of no legal effect by Honduran courts, the Honduran Attorney General, and other high level Honduran officials, including the Honduran Human Rights Commission.

But the 11th Circuit, in denying the original appeal, said that while the laws might have been changed post-conviction, the laws were valid when the charges were brought.

The 11th Circuit said that if it were to rule in favor of the defendants, other Lacey Act defendants in the future may "lobby" or bribe foreign governments to change their laws in favor of the defendants.