State v. Piazza
| Decision Date | 16 February 1996 |
| Citation | 668 So.2d 1125 |
| Parties | 95-1186 La |
| Court | Louisiana Supreme Court |
William J. Guste, III, Jonathan Shushan, Edward J. Castaing, Jr., New Orleans, for Applicant.
Richard P. Ieyoub, Attorney General, Walter P. Reed, District Attorney, Reginald T. Badeaux, III, Asst. Dist. Attorney, William R. Campbell, Jr., Asst. Dist. Attorney, for Respondent.
[95-1186 La. 1] PER CURIAM: *
Relator was charged by affidavit filed in the 22nd Judicial District Court with violation of La.R.S. 56:327(A), which prohibits the sale, exchange, or importation for sale, of certain enumerated freshwater and saltwater game fish and any other species of game fish as defined by La.R.S. 56:8(44), (82) and (83). After a bench trial on November 2, 1993, relator was found guilty as charged. The court sentenced him to 30 days in the St. Tammany Parish Jail and imposed a fine of $400.00. The court also revoked relator's license as a wholesale fish distributor during the period for which it was issued and for one year thereafter. On relator's application for review, the First Circuit affirmed his conviction and sentence. State v. Piazza, 94-1841 (La.App. 1st Cir. 5/5/95), 655 So.2d 1357. We granted writs to consider the nature of the offense defined by La.R.S. 56:327(A) and whether the trial court erred in basing its verdict on the opinions of two state experts that the fish seized in connection with this prosecution appeared too fresh to have originated, as relator claimed, in a lawful shipment of aquaculturally harvested fish from Texas. We now reverse.
[95-1186 La. 2] On the evening of July 27, 1993, Jeff Mayne, an enforcement agent of the Wildlife and Fisheries Department ("Department"), seized a shipment of hybrid striped bass found in a truck stopped at the I-10 weigh scales outside of Slidell, Louisiana. The shipment, from relator's wholesale fish business in Harahan, Louisiana, was destined for East Coast buyers and contained approximately 1,100 pounds of hybrid striped bass iced down in 22 boxes. It was undisputed at trial that relator had reported to the Department on July 21, 1993, the importation of 2543 pounds of hybrid striped bass from the Silver Streak Bass Co., a licensed aquaculture fish producer located in Seguin, Texas. In Mayne's judgment, however, the fish he found at the weigh station appeared "a lot fresher than six days old," and he seized the entire shipment. On the following afternoon, Wildlife agents John Burdon and Howard Ragillio inspected four fish taken from the shipment. They also concluded that the fish appeared too fresh to have originated in the July 21 shipment and that the samples were no more than 72 hours old from the time that they had been harvested. After inspecting relator's business records, which appeared to document a discrepancy of over 2,000 pounds between fish received by relator between June 30, 1993 and July 21, 1993, and fish sold by him over the same period of time, Burdon swore out the affidavit charging relator with a violation of La.R.S. 56:327(A).
Burdon and Ragillio testified at trial as experts, as did relator, who qualified as an expert in the commercial packaging and transportation of seafood on the basis of his lifelong work in a family business dating back 100 years. According to relator, who deals with fish farms throughout the Louisiana-Mississippi-Texas area and purchases aquaculturally-raised hybrid striped bass from them, all of the fish seized on July 27 had come from the July 21 shipment from Texas which he received on the following day. Prompt and repeated icings from the moment of harvesting had made his fish "appear to be fresher longer." [95-1186 La. 3] Relator also produced invoices for fish purchased from Bayou Blue Mariculture, an in-state fish farm, to account for the discrepancy found in his records by Burdon. For the court, the case "boil[ed] down to simply a matter of whose experts convince the Court and convince the Court beyond a reasonable doubt that their position [wa]s correct."
In 1974, Louisiana's law regarding sport and commercial fishing, La.R.S. 56:311 et seq., underwent comprehensive revision. La.Acts 1974, No. 223. As amended and reenacted, La.R.S. 56:327 provided that "[n]o person shall sell, exchange, expose or offer for sale or exchange, or have in possession for sale or exchange or purchase any freshwater game fish." La.R.S. 56:311(21), reenacted in 1981 as La.R.S. 56:8(44), defined the term freshwater game fish as "any species of fish found in the fresh waters of the state that are taken for sport or recreational purposes." In 1976, the prohibition against the sale of freshwater game fish became subsection A of § 327 when the legislature added subsection B relating to commercial licenses for shrimp, oysters and fish. La.Acts 1976, No. 576.
In State v. Bates, 363 So.2d 469, 471-72 (La.1978), this Court found no evidence in the language of § 327(A), or in former § 311, or in law governing sport and commercial fishing generally, of any "intent to regulate the possession or sale of freshwater game fish taken outside this state." The Court concluded that La.R.S. 56:327(A) did not "proscribe as unlawful the introduction into this State for human consumption, or the possession or sale thereof, fresh freshwater game fish taken in a foreign nation or another state of the Union, when the taking and disposition of these fish is approved as legitimate in a foreign nation or sister state of the United States." Id. Concurring in that result, Chief Justice Dixon observed that § 311(21) could be read "to define freshwater game fish as either a species or a fish found in state waters," and concluded that the ambiguity [95-1186 La. 4] "must be interpreted favorably to defendants [charged with violating § 327]." Id., 363 So.2d at 472.
In the year following our decision in Bates, the legislature amended La.R.S. 56:327(A) to prohibit the sale or importation for sale of certain enumerated species of fish, including hybrid striped bass, or "any other species of freshwater game fish as defined in La.R.S. 56:311(21) whether taken from within or without the state," unless each of such imported fish was tagged by the appropriate conservation agency of the state from which the fish were taken. 1979 La.Acts No. 287 (emphasis added). Since then, the legislature has frequently amended and reenacted § 327(A), adding a second exception for game fish fingerlings, 1983 La.Acts No. 522, and subdividing the section to bring within its prohibition saltwater game fish. La.R.S. 56:327(A)(1)(b); 1987 La.Acts No. 285. In 1988, the legislature added two more exceptions covering hybrid striped bass produced and regulated under the provisions of La.R.S. 56:411 governing domestic fish farming, 1988 La.Acts No. 778, and any freshwater or saltwater game fish "raised and taken in accordance with a certified aquaculture program or a valid experimental mariculture permit issued pursuant to R.S. 56:579.1." 1988 La.Acts No. 889. Aquaculture is "the production of fish in a controlled environment in private waters on private lands." La.R.S. 56:356. The legislature also added subsection A(1)(c) to the statute, governing notice to the Department by the buyer of any authorized shipment of imported saltwater game fish. 1988 La.Acts No. 889. Finally, in 1991, the legislature enacted La.R.S. 56:327.1 expressly to allow the importation into this state of "cultured fish," specifically defined in that section as saltwater game fish otherwise covered by R.S. 56:327(A)(1)(b), when such fish (excluding certain named species which may inhabit the waters above and below the saltwater demarcation line of this state, e.g. largemouth bass) are raised and harvested in a licensed [95-1186 La. 5] aquaculture program of another state and prior notice of shipment is given the Department. 1991 La.Acts No. 822.
This history of La.R.S. 56:327 since 1974 leads us to conclude that the sale or the importation for sale of any fish belonging to a species of freshwater or saltwater game fish found in the waters of Louisiana is prohibited under all but specifically defined circumstances. Those exceptional circumstances include the importation of freshwater or saltwater game fish, as defined by the legislature or specified by Department rule, harvested in a licensed aquaculture program of another state. See La.R.S. 56:334.2 (); La.Admin.Code tit. 76, § VII:121 (); cf., La.R.S. 56:322 () These exceptions are in the nature of affirmative defenses...
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Piazza v. Mayne, CIV. A. 97-238.
...that the elements of the crime—namely, possession with intent to sell certain freshwater game fish—were easily satisfied. State v. Piazza, 668 So.2d 1125, 1127 (1996); 668 So.2d at 1129 (Lemmon, J., concurring). Nevertheless, Piazza was absolved of all charges because he had carried his bur......
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Piazza v. Mayne
...convince[d] the Court and convince[d] the Court beyond a reasonable doubt that their position [was] correct.'" State v. Piazza, 668 So.2d 1125, 1126 (La. 1996) ("Piazza II"). For its part, the State submitted evidence that Mayne's decision to seize the July 27 shipment was based on his exam......