U.S. v. Lee

Decision Date28 June 1991
Docket Number90-30164,Nos. 90-30127,90-30150,90-30165 and 90-30175,90-30162,s. 90-30127
Citation937 F.2d 1388
Parties21 Envtl. L. Rep. 21,117 UNITED STATES of America, Plaintiff-Appellee, v. Patrick LEE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jen-Tai CHU, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Wesley Ming HSU, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Meng Gin HSU, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Chan Lon LIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Chin-Hong WANG, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Mark D. Mestel, Mestel & Muenster, Everett, Wash., Fred Boness, Preston Thorgrimson Shidler Gates & Ellis, Anchorage, Alaska, Larry Finegold, Finegold & Zulauf, James L. Vonasch, Peter A. Camiel, Mair, Abercrombie, Camiel & Rummonds, David S. Marshall, Prince, Kelley, Newsham & Marshall, Seattle, Wash., for defendants-appellants.

John T. Stahr, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE, Chief Judge, and O'SCANNLAIN and LEAVY, Circuit Judges.

WALLACE, Chief Judge:

Lee, Chu, Wesley Hsu, Meng Hsu, Lin, and Wang (the fishermen) were indicted on various charges related to the illegal acquisition, sale and importation of salmon caught in Northern Pacific waters. Each of the fishermen filed pretrial motions to dismiss the charges on the grounds that the Lacey Act (Act), 16 U.S.C. Secs. 3371-78, was inapplicable and unconstitutional. The district court denied these motions, and the fishermen then pleaded guilty. Pursuant to Federal Rule of Criminal Procedure 11(a)(2), the fishermen reserved the right to appeal the district court's adverse rulings on their pretrial motions, and on that basis they now appeal from the judgment of the district court. The district court had jurisdiction pursuant to 16 U.S.C. Sec. 3375(c) and 18 U.S.C. Sec. 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

After receiving information that Lee was advertising salmon caught by vessels from the Republic of China (also referred to as Taiwan) for sale in the United States, the National Marine Fisheries Service (Service) of the Department of Commerce initiated an undercover investigative operation in early 1989. In connection with this operation, an undercover Service agent negotiated with Lee to purchase 500 metric tons of salmon that had been taken illegally by Taiwanese squid fishing vessels in the Northern Pacific waters. Lee agreed to transfer the salmon on the high seas from Taiwanese vessels to an American carrier, the Redfin, which was chartered by the Service for this operation. The salmon were then to be smuggled into the United States at Seattle, Washington, with their true origin masked through the use of fraudulent United States Certificates of Origin. In return for the salmon, the agent agreed to pay Lee $1.3 million in a series of transactions, including payments of cash, cashier's checks and monetary wire transfers. Each of the remaining five defendants were involved along with Lee in this operation, providing various services related to either the salmon transfer or the payment of funds.

On July 18, 1989, Taiwanese fishing vessels rendezvoused with the Redfin in international waters. Meng Hsu, Lin, and Chu went aboard the Redfin to await word of payment before transferring the salmon, and were arrested by government officials there. Meanwhile, Lee and Wesley Hsu accompanied the Service agent to a Seattle bank, where they received $330,000 for the first 129 metric tons of salmon. Both men were arrested before leaving the bank. Wang was arrested on the same date in his Seattle hotel room.

The government charged the fishermen with various crimes in a seven-count indictment. Principal among these allegations was the charge that the fishermen had violated the Act by engaging in a conspiracy to import salmon into the United States, while knowing that it had been taken in violation of the laws of Taiwan. Although the fishermen pleaded guilty, they reserved the right to challenge on appeal the applicability and constitutionality of the Act.

II

The section of the Act under which the fishermen were charged makes it unlawful for any person "to import, export, transport, sell, receive, acquire, or purchase ... any fish or wildlife taken, possessed, transported or sold in violation of any law or regulation of any State or in violation of any foreign law." 16 U.S.C. Sec. 3372(a)(2) (emphasis added). A portion of the indictment charged that the fishermen imported salmon into the United States, while knowing that the salmon had been taken in violation of a Taiwanese regulation that prohibits Taiwanese squid fishing vessels from catching salmon. The fisherman contend that their unlawful taking of salmon cannot result in an Act violation, because the Taiwanese regulation at issue does not constitute a "foreign law" under section 3372(a)(2)(A). The district court rejected this argument. We review de novo the district court's interpretation of the Act. United States v. Thomas, 887 F.2d 1341, 1343 (9th Cir.1989).

The fishermen argue that the term "any foreign law" encompasses only foreign statutes, not foreign regulations. They point out that, prior to its amendment in 1981, the Act prohibited trade in wildlife taken in violation of "any law or regulation of any State or foreign country," 18 U.S.C. Sec. 43(a)(2) (1976) (repealed on Nov. 16, 1981, by Pub.L. No. 97-79, Sec. 9(b)(2), 95 Stat. 1079), but now does not mention "regulation," see 16 U.S.C. Sec. 3372(a)(2). Moreover, they focus on the fact that the present section 3372(a)(2)(A) makes reference to "any law or regulation" in the context of state law, but does not mention "regulation" when referring to foreign law. In effect, they argue that because the Act no longer makes reference to foreign "regulations," the term "any foreign law" cannot include such regulations.

When presented with similar arguments in United States v. 594,464 Pounds of Salmon, 871 F.2d 824 (9th Cir.1989) (594,464 Pounds ), however, we ruled that a Taiwanese regulation prohibiting the export of salmon without a permit constituted a "foreign law" under section 3372(a)(2)(A) and thereby supported an Act violation. That regulation was issued, as in this case, by a body of the Executive Yuan of the Republic of China, and we concluded that "the Act's term 'any foreign law' necessarily encompasses the Taiwanese regulation." Id. at 828. We first focused on the generally broad definition of the word "law" as " 'a body of rules of action or conduct prescribed by controlling authority, and having binding legal force.' " Id. at 826, quoting Black's Law Dictionary (5th ed. 1979). In response to the arguments regarding the significance of the failure to mention "regulation" when referring to foreign law, we observed that the 1981 Act Amendments "were passed in response to Congress's frustration at the inadequacy" of prior laws. Id. at 827; see also S.Rep. No. 123, 97th Cong., 1st Sess. 2-4, reprinted in 1981 U.S.Code Cong. & Admin.News 1748, 1749-51. Because Congress desired to expand the scope of the Act, we concluded that the term "any foreign law" was used not to limit the Act's applicability, but instead to encompass the wide range of laws passed by "the world's regimes that possess systems of law and government that defy easy definition or categorization." 594,464 Pounds, 871 F.2d at 828. A narrow interpretation that did not include at least foreign regulations as grounds for violations would only serve to "gut[ ] the statute." Id.

Thus, circuit precedent indicates that this Taiwanese regulation, almost identical to the one in 594,464 Pounds, constitutes a "foreign law." The fishermen urge a different result, however, because this action involves criminal penalties rather than the forfeiture action at issue in 594,464 Pounds. The Act provides for civil penalties, criminal penalties, and forfeiture of illegally taken fish and wildlife. See 16 U.S.C. Secs. 3373(a) (civil), 3373(d) (criminal), 3374 (forfeiture). All of these penalties are meant to apply to those who engage in conduct in violation of section 3372. See id. No reason exists to suppose that Congress intended "any foreign law" to mean something different in the criminal context than in the forfeiture context. Thus, the interpretation set forth in 594,464 Pounds is applicable in this case.

The fishermen contend that the term "foreign law" is ambiguous, citing as support our statement in 594,464 Pounds. See 871 F.2d at 828 ("the statutory language 'any foreign law' cannot be said to be unambiguous when read in the context of the entire subsection"). Because "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493 (1971), they argue that we should diverge from the 594,464 Pounds interpretation and construe "foreign law" more narrowly in the criminal context. We conclude, however, that the Act's criminal sanctions provision resolves any possible ambiguity. That provision only allows for the imposition of criminal penalties if a violator knew or, in the exercise of due care, should have known that he was taking fish unlawfully under "any underlying law, treaty, or regulation." 16 U.S.C. Sec. 3373(d)(1)-(2). Because the criminal culpability requirements make reference to regulations, and because it seems clear that Congress intended "foreign law" to have a singular meaning throughout the Act, we hold that the Taiwanese regulation constitutes a "foreign law" in this case.

The fishermen also argue that even if some foreign regulations are sufficient bases...

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