United States v. Oceanpro Indus.

• Decision Date: 23 March 2012
• Docket Number: Nos. 10–5239,10–5285.,10–5284,s. 10–5239
• Citation: 674 F.3d 323
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. OCEANPRO INDUSTRIES, LTD., d/b/a Profish, Ltd., Defendant–AppellantState of Maryland, Amicus Supporting Appellee.United States of America, Plaintiff–Appellee, v. Benjamin Paul Clough, III, Defendant–AppellantState of Maryland, Amicus Supporting Appellee.United States of America, Plaintiff–Appellee, v. Timothy John Lydon, Defendant–AppellantState of Maryland, Amicus Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

674 F.3d 323

UNITED STATES of America, Plaintiff–Appellee,

v.OCEANPRO INDUSTRIES, LTD., d/b/a Profish, Ltd., Defendant–AppellantState of Maryland, Amicus Supporting Appellee.United States of America, Plaintiff–Appellee,

v.Benjamin Paul Clough, III, Defendant–AppellantState of Maryland, Amicus Supporting Appellee.United States of America, Plaintiff–Appellee,

v.Timothy John Lydon, Defendant–AppellantState of Maryland, Amicus Supporting Appellee.

Nos. 10–5239

10–5284

10–5285.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2011.Decided: March 23, 2012.

ARGUED: Daniel Saleem Seikaly, Sr., Andrews & Kurth, LLP, Washington, D.C.; Richard Wyrough, Waldorf, Maryland, for Appellants. John Luther Smeltzer, United States Department of Justice, Washington, D.C., for Appellee. ON

BRIEF:

Robert Dreher, Acting Assistant Attorney General, Wayne D. Hettenbach, United States Department of Justice, Washington, D.C., for Appellee. Douglas F. Gansler, Attorney General, Baltimore, Maryland, Paul J. Cucuzzella, Assistant Attorney General, Office of the Attorney General, Annapolis, Maryland, for Amicus Supporting Appellee.

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

NIEMEYER, Circuit Judge:

Oceanpro Industries, Ltd., doing business as “Profish, Ltd.” (“Oceanpro”), a seafood wholesaler in the District of Columbia, and two Oceanpro employees, Timothy Lydon (officer and fish buyer) and Benjamin Clough, III (fish buyer), were convicted for purchasing untagged and oversized striped bass, in violation of the Lacey Act, 16 U.S.C. § 3372(a)(2)(A) (prohibiting the purchase in interstate commerce of fish or wildlife sold in violation of state law). Oceanpro and Clough were also convicted for giving a false statement to federal law enforcement officers during the course of the investigation of the crimes, in violation of 18 U.S.C. § 1001. In addition to imposing fines and prison sentences, the district court ordered the three defendants, jointly and severally, to pay Maryland and Virginia $300,000 in restitution, to be divided equally between the States.

On appeal, Oceanpro and Clough challenge the District of Maryland's venue for the false statement offense because the false statement was made at the offices of Oceanpro in the District of Columbia, not in Maryland. In addition, all of the defendants contend that the order of restitution to the States was improper because the States did not have a sufficient interest in the illegally caught fish so as to make them “victims,” as is required for receiving the benefit of a restitution order.

We reject both arguments, concluding that venue for the false statement charge was proper in the District of Maryland and that Maryland and Virginia's interest in striped bass was sufficient to make the States “victims” and therefore to justify an award to them of restitution. Accordingly, we affirm.

I

Oceanpro is a seafood wholesaler operating in the District of Columbia. Timothy Lydon was part owner and vice-president of Oceanpro, and Benjamin Clough was an employee during the period from 2001 through 2007. Both were responsible for purchasing striped bass from commercial fishermen for Oceanpro's resale to restaurants and other customers.

The striped bass, commonly called “rockfish,” is a highly prized fish for both eating and sport fishing. It is regulated in the main stem of the Potomac River by the Potomac River Fish Commission (comprised of commissioners from both Maryland and Virginia) and in the other waters of Maryland and Virginia by the States, respectively. During the 1980s, when the stock of striped bass was depleted, all harvesting of the fish was prohibited. But beginning in 1995, when the stock had been restored, commercial fishing for striped bass was reopened, subject to restrictions consisting of seasonal closures, size limits, and harvest quotas. To protect spawning fish, Maryland prohibited the harvesting of striped bass between March 25 and June 1, and Virginia restricted harvesting during the same period to fish between 18 and 28 inches in size. Also, both States imposed annual catch quotas, which were enforced by the requirement to tag all fish.

Following an investigation into the illegal harvesting of striped bass, Oceanpro, Lydon, and Clough were indicted in four counts, charging in Count One, conspiracy to violate the Lacey Act, and in Counts Two, Three, and Four, the substantive acts of purchasing untagged and oversized fish during specified periods. Oceanpro and Clough were charged in Count Five for making the following false statement, which was signed and under oath, to investigators: “During my employment with Oceanpro, I have never purchased untagged striped bass from Jerry Decatur[, Sr.] or Jerry Decatur, Jr.” The indictment alleged that Oceanpro and Clough had in fact knowingly purchased untagged striped bass from the Decaturs on numerous occasions.

Before trial, Oceanpro and Clough unsuccessfully challenged the venue of the false statement count on the ground that the false statement was made at Oceanpro's offices in the District of Columbia, and not in Maryland where Oceanpro and Clough were indicted.

A jury convicted all three defendants on all counts charged. With respect to Counts Two through Four, the jury convicted Clough for lesser included offenses based on his lesser involvement. The government established during trial that during the period from 1995 to May 2007, Oceanpro purchased 213,703 pounds of striped bass that were illegally harvested in Maryland and Virginia. While Lydon was involved in buying striped bass during the entire period, Clough was a buyer for Oceanpro only between 2001 and 2007, and during that period, Oceanpro purchased 157,361 pounds of illegally harvested striped bass. Based on a market value of four dollars per pound, the government calculated that Oceanpro and Lydon were responsible for purchasing $854,812 worth of illegally caught striped bass and Clough, for $629,444 worth.

The district court sentenced Oceanpro to a fine of $575,000, and Lydon and Clough to terms of imprisonment of 21 months and 15 months, respectively. Additionally, the court imposed a $60,000 fine on Lydon and a $7,500 fine on Clough. Finally, the court ordered that all three defendants, jointly and severally, pay $300,000 in restitution to Maryland and Virginia, to be divided equally between the States. Compliance with the restitution order was also made a condition of probation for Oceanpro and a condition of supervised release for the two individuals.

From judgments entered on November 30, 2010, the defendants appealed. Oceanpro and Clough challenge the venue of the false statement charge in Count Five, and all three defendants challenge the restitution order.

II. Venue

Federal law enforcement officers visited Oceanpro's place of business on Fenwick Street in Washington, D.C., on August 29, 2007, to execute a search warrant and serve a grand jury subpoena in connection with their investigation of trafficking in illegally caught striped bass. They also interviewed Clough, who gave a signed statement under oath, which included: “During my employment with OceanPro, I have never purchased untagged striped bass from Jerry Decatur [, Sr.] or Jerry Decatur, Jr.” As found by the jury, this statement was false and Clough knew it. The evidence showed that Clough, acting on behalf of Oceanpro, purchased untagged striped bass that were harvested in the Potomac River in Maryland from the Decaturs on numerous occasions. These facts formed the basis for the jury's conviction of Oceanpro and Clough on Count Five for violation of 18 U.S.C. § 1001.

Oceanpro and Clough contend that because Clough's statement was made in Oceanpro's offices in the District of Columbia, the crime was committed entirely in the District of Columbia, and therefore venue for the crime was inappropriate in the District of Maryland. They rely on the Supreme Court's statement in United States v. Cabrales, 524 U.S. 1, 6–7, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998), that for purposes of determining venue, “[t]he locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.”

Relying on United States v. Bowens, 224 F.3d 302, 314 (4th Cir.2000), the government contends that venue is also proper in Maryland because the effects of the false statement, based on the materiality requirement, were essential to the offense and were felt in Maryland by the Maryland-based investigation.

Proper venue is, of course, a constitutional right. Article III requires that “[t]he Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed,” U.S. Const. art. III, § 2, cl. 3, and the Sixth Amendment reinforces this command by mandating that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed,” U.S. Const. amend. VI. These constitutional mandates are codified in Federal Rule of Criminal Procedure 18, which provides that “the government must prosecute an offense in a district where the offense was committed.” See also United States v. Rodriguez–Moreno, 526 U.S. 275, 278, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999).

When a criminal statute does not contain an express venue provision, the place of the crime, its locus delicti, controls venue, and the place of the crime “must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” Cabrales, 524 U.S. at 6–7, 118 S.Ct. 1772. The Supreme Court has set forth a two-part test for making this determination: “In performing this inquiry, a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the...