U.S. v. Berdeal

• Decision Date: 22 January 2009
• Docket Number: Case No. 07-20898-CR.
• Parties: UNITED STATES of America, v. Carlos German BERDEAL, Lilliam Pastrana Berdeal, Rodolfo Julio Rego, and Carlos Seafood, Inc.
• Court: U.S. District Court — Southern District of Florida

Page 1326

595 F.Supp.2d 1326

UNITED STATES of America, v. Carlos German BERDEAL, Lilliam Pastrana Berdeal, Rodolfo Julio Rego, and Carlos Seafood, Inc.

Case No. 07-20898-CR.

United States District Court, S.D. Florida, Miami Division.

January 22, 2009.

Norman 0. Hemming, III, United States Attorney's Office, Miami, FL, for Plaintiff.

David Scott Mandel, Esq., Mandel & Mandel LLP, Thomas N. McAliley, Esq., White & Case, for Defendant.

ORDER GRANTING IN PART MOTION TO DISMISS COUNTS OF INDICTMENT

ADALBERTO JORDAN, District Judge.

For the reasons stated below, the defendants' motion to dismiss the indictment [D.E. 49] is GRANTED IN PART. Counts 2, 3, and 4 of the indictment against Carlos German Berdeal, Lilliam Pastrana Berdeal, Rodolfo Julio Rego, and Carlos Seafood, Inc. are dismissed with prejudice. Similarly, the conspiracy charges in Count 1 are dismissed with prejudice to the extent that they are based on alleged violations of § 68B-21.003(1) and § 6821.004(1)(a) of the Florida Administrative Code.¹

I. ALLEGATIONS IN THE INDICTMENT

The indictment alleges, in relevant part, that the defendants violated the Lacey Act, 16 U.S.C. § 3372(a)(2)(A), by selling frozen snook fillets imported from a foreign country, which is allegedly prohibited by § 68B-21.003(1), § 68B-21.004(1)(a) of the Florida Administrative Code.² The indictment, in the background section and in Count 1, alleges that the snook came from Nicaragua.³

In Count 2, the government alleges that on January 15, 2003, the defendants sold approximately 30 cases of snook, valued at $4,800.00. Count 3 is based on the alleged sale of 340 cases of snook worth $54,400.00 on December 16, 2006, and Count 4 is based on the alleged sale of 70 cases of snook on January 29, 2004, with a value of $11,200.00.

II. STANDARD

A motion to dismiss in criminal case is limited to the four corners of the indictment. See United States v. Salman, 378 F.3d 1266, 1268 (11th Cir.2004). The indictment's allegations are assumed to be true and are viewed in the light most favorable to the government. See United States v. Torkington, 812 F.2d 1347, 1354 (11th Cir.1987). A motion to dismiss is not a device for a summary trial of the evidence. See, e.g., Salman, 378 F.3d at 1268-69; United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992). But an indictment fails as a matter of law if the defendants' charged conduct, even if true, does not violate the statute or provision cited in the indictment. See, e.g., United States v. Madera, 528 F.3d 852, 859 (11th Cir.2008) (dismissing indictment because defendant's conduct did not violate charged statute); United States v. Bobo, 344 F.3d 1076, 1086 (11th Cir.2003) (reversing denial of motion to dismiss because the alleged conduct did not violate the statute charged in the indictment).

III. DISCUSSION

The Lacey Act prohibits, among other things, the importation and sale in interstate or foreign commerce of any fish in violation of any state or foreign law. See 16 U.S.C. § 3372(a)(2)(A). To prevail in a Lacey Act prosecution, therefore, the government must prove an underlying violation of state or foreign law. See United States v. McNab, 331 F.3d 1228, 1241, 1247 (11th Cir.2003). The underlying foreign or state law defines what constitutes illegal conduct. See id. at 1241. "Consequently [the Lacey Act] is `not violated if the state law is not violated.'" United States v. Miller, 981 F.2d 439, 442 (9th Cir.1992). As explained below, all Lacey Act charges based on purported violations of §§ 6821.003(1) and 68B-21.004(1)(a) fail to state a claim against the defendants because these provisions of the Florida Administrative Code do not apply to snook caught outside of Florida.

The indictment alleges that the defendants violated §§ 68B-21.003(1) and 6821.004(1)(a) by importing and selling snook caught or taken in Nicaragua. The defendants do not dispute the indictment's factual allegations but argue that the Lacey Act charges fail as a matter of law because neither § 68B-21.003(1) nor § 6821.004(1)(a) apply to snook caught outside of Florida. I agree.

Whether § 68B-21.003(1) and § 68B-21.004(1)(a) apply to fish caught outside of Florida is a question of Florida law. See Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997) ("neither this Court nor any federal tribunal has any authority to place a construction in a state statute different from the one rendered by the highest court of that state"); Cotton States Mut. Ins. Co. v. J.O. Anderson, 749 F.2d 663, 667 (11th Cir. 1984) (state courts have the inherent power "to construe their own statutes and federal courts are bound by that state interpretation").

There are no Florida cases on whether §§ 68B-21.003(1) and 6821.004(1)(a) apply to fish caught outside of Florida. But the Florida Supreme Court has made clear that, absent express language stating explicitly the application of the law to fish caught extraterritorially, Florida fishing regulations apply only to fish taken from Florida waters.

This principle dates back to 1927, when the Florida Supreme Court reversed a conviction for possession in Florida of mullet that had been legally caught in Alabama waters. See White v. State, 93 Fla. 905, 113 So. 94, 95 (1927). The statute at issue in White prohibited the possession, purchase, or sale of mullet of less than 12 inches in length:

Section 1 of the act declares it to be unlawful for any person to take, have in his `possession, buy, sell, or offer for sale at any time, or unnecessarily destroy any of the fish known' as mullet, of less than 12 inches from tip of nose to fork of tail: `Provided, that mullet of ten inches can be taken in the waters at points located west of Aucilla river to the Alabama line, provided, that silver mullet of a less length than twelve inches may be caught and possessed during the open season.'

113 So. at 94-95. The Florida Supreme Court set out a two-prong test to determine whether a person could be convicted under Florida law for possessing fish caught outside of Florida. The first question is "whether it was clearly the purpose of the statute to include fish that were imported as an article of commerce from another state." See id. at 95 (emphasis added). If this is the purpose of the statute, then the court needs to determine whether such regulation of fish imported from other state unduly interferes with interstate commerce. Id. Applying this test to the mullet statute, the Florida Supreme Court concluded in White that the conviction failed under the first prong because "nowhere in any of its provisions is the purpose at all clear that they should include fish or game taken in another jurisdiction." Id. at 95. It reversed the conviction to allow the defendant to present evidence that the fish had been caught outside of Florida. See id.

The Florida Supreme Court reaffirmed this principle three years later in Taylor v. Penton, 99 Fla. 1067, 128 So. 499 (1930):

Some courts have adopted the rule that a statute like the one under review can have no application to fish taken in another state unless made so by express language, while other courts hold that the penalty for taking, having in possession, or selling game or fish applies to all game or fish whether domestic or foreign ... This court is committed to the former rule ... The reason for the rule being that such statutes are penal and should punish only those acts which are specifically condemned.

Id. at 499-500 (internal citations omitted).

In State v. Millington, 377 So.2d 685, 687 (Fla.1979), the Florida Supreme Court again applied this principle to conclude that Fla. Stat. § 370.15(2)(a)—which prohibited the possession of "small shrimp"— applied to shrimp caught outside of Florida. In relevant part, § 370.15(2)(a) made it "unlawful for any person, firm, or corporation to catch, kill, or destroy shrimp or prawn within or without the waters of this state ..." (emphasis added). The Florida Supreme Court reasoned that "from the words of the statute alone, it is clear that the legislature intended the prohibition against possession of `small shrimp' to apply to shrimp taken `within or without the waters of this state.'" See Millington, 377 So.2d at 687. The clear legislative intent to have § 370.15(2)(a) apply outside of Florida distinguished the statute in Millington from the one in White. See id.

The presumption that Florida fishing regulations do not apply to fish caught outside of Florida in the absence of clear legislative intent is consistent with other Florida cases refusing to imply the extraterritorial application of other Florida statutes. See Burns v. Rozen, 201 So.2d 629, 630-31 (Fla. 1st DCA 1967) ("Extraterritorial effect of an enactment is not to be found by implication."). See also Se. Fisheries Assoc., Inc. v. Dep't of Natural Res., 453 So.2d 1351, 1355 (Fla.1984) (refusing to imply extraterritorial application of statute prohibiting the use of specified fish traps); Boehner v. McDermott, 332 F.Supp.2d 149, 155 (D.D.C.2004) ("Florida courts have consistently declined to apply Florida law outside territorial boundaries unless a statute contains an `express intention that its provisions are to be given extraterritorial effect.'")

As noted earlier, the snook at issue were caught or taken in Nicaragua, and there is no allegation that this was done in violation of Nicaraguan law. The determinative question in this case, therefore, is whether §§ 68B-21.003(1) and 6821.004(1)(a) of the Florida Administrative Code expressly apply to snook caught outside of Florida.

A. § 68B-21.003(1)

Under § 68B-21.003(1), it is unlawful for any person, firm or corporation to buy, sell, trade, barter or exchange snook in any form or manner, or to receive anything of value for any snook with or without changing possession thereof, except as provided in Rule 688.012, F.A.C.

Nothing in the text of § 68B-21.003(1) suggests that it is intended to apply to snook caught outside of...