U.S. Criminal Fisheries Enforcement History, Tools, Reasons

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1 U.S. Criminal Fisheries Enforcement History, Tools, Reasons Elinor Colbourn, Assistant Chief Environmental Crimes Section, US Dept. of Justice Chatham House London, January 13, 2011

2 Why Prosecute Fisheries Cases? Fisheries violations are often massive in scale and pose a direct threat to marine biodiversity; Violations can result in huge profits to industry and individuals at the direct expense of honest fishermen; The US is probably best-equipped equipped to prosecute fisheries violations (tools, resources) and is a huge market for fish; Sentences are often very severe (incarceration, fines, restitution) and can actually deter future violations.

3 Fisheries Enforcement Tools Investigated by NOAA-Fisheries, ICE, FWS, FDA, State agents Regulated pursuant to Magnuson-Stevens Act; More often prosecuted under Lacey Act, Smuggling, False Statement statutes.

4 Lacey Act 101: The Lacey Act is great because: It is very flexible from administrative penalties to misdemeanors to felonies; automatically applies to new laws It can fight Illegal and Unreported (where reports are required) fishing in foreign countries where the product comes into the U.S. It can help other countries enforce their own laws by punishing the import into the US of fish taken unlawfully elsewhere

5 Wildlying (formerly false labeling ): Elements 1. Def made/submitted something false about fish; 2 Actual or intended transp. of the fish over a border; So far, this is a misdemeanor,, unless you also can prove: 3a Offense involves import/export of the fish (felony) OR, if interstate, not transnational: 4a Commercial intent and (felony) 4b Fish market value >$350 (felony) No materiality requirement!

6 Import/Export Trafficking Case: Elements 1. Fish taken, possessed, transported or sold illegally; 2a. Def knew fish t/p/tr/s illegally; (felony) OR 2b Def, in exercise of due care, should have known fish was t/p/tr/s illegally, and (misdo) 3. Def imported/exported fish (both)

7 Significant Fisheries Cases U.S. v. Lee et al,, 937 F.2d 1388 (9 th Cir. 1991) Lee et al pled guilty to Lacey Act violations related to the illegal acquisition, sale and importation of salmon ($1.3 million worth black market price) caught in Northern Pacific waters Reserved right to appeal pretrial motions related to validity and application of the Lacey Act Held: foreign regulation constitutes underlying foreign law for a Lacey Act prosecution Held: underlying violation may be for civil penalties but criminal penalties still available under Lacey Act Held: defendant need not have committed the underlying violation but merely know that the fish was taken, possessed, transported or sold s in violation of some underlying law Held: Lacey Act not unconstitutionally vague

8 United States v. Northern Victor Partnership (unpublished 1996) Seattle fishing company prepared and submitted false fish tickets for approximately 160,000 lbs. of pollock which had been retained in violation of cod fisheries regulations (under an FMP). Pled guilty to one felony violation of the Lacey Act false labeling prohibitions (despite Lacey Act exception for activities governed by an FMP) Plea provided for a $100,000 fine and preparation of a PSA urging other fishing companies to follow regulations.

9 McNab Owns the Largest Lobster Fleet In Honduras - Honduran Fishermen Transfer Lobster Bags At-Sea to Freighter - Freighter Brings Unprocessed Lobster to U.S.

10 Lobster Tails in Bulk Bags The Exportation of Unprocessed Seafood is a Violation of Honduran Law

11 United States v. McNab et al,, 2003 WL (11 th Cir. 2003) Honduran and 3 U.S. nationals convicted for smuggling, money laundering and Lacey Act violations related to multi-year conspiracy to import lobsters taken in violation of Honduran laws (undersized and eggbearing, not reported to Honduran authorities) 3 defendants received 97 month sentences and a combine forfeiture of $1 million. Held: post-sentencing sentencing change in position of foreign government regarding its laws does not necessarily require conviction to be vacated. Held: foreign regulations or decrees constitute foreign laws for purposes of the Lacey Act.

12 Defendant s s Criminal Sentences: Robert Blandford: 97 Months Jail $ 15,000 Fine Abner Schoenwetter: 97 Months Jail $ 15,000 Fine David H. McNab: 97 Months in U.S. Jail $ 100,000 Fine Diane Huang: 24 Months Jail $10,000 Fine Combined restitution of $1 million; $500,000 returned to Honduras

13 United States v. Bengis et al, (S.D.N.Y. 2004) Defendants engaged in multi-year conspiracy to illegally harvest and import into the U.S. South African rock lobster and Patagonian toothfish (Chilean seabass). Un- precedented information/assistance from South African investigators Two defendants pled guilty to conspiracy to violate the Lacey Act and commit smuggling, as well as substantive Lacey Act Counts; 3 rd defendant pled to misdemeanor conspiracy to violate the Lacey Act Sentenced to 46 months, 30 months and 12 months in prison, respectively; 7.4 million in forfeitures in total APPELLATE DECISION finding South Africa a victim and the lobsters property resitution mandatory. Valuation method selected of value of lobster - $64 million.

14 United States v. Neptune Fisheries, et al,, (S.D. Fla. 2004) Defendants Neptune and Aaron Candella imported over 167,000 lbs (over $2.5 million) of undersized lobster from Nicaragua. Pled to one count of conspiracy to violate the Lacey Act and smuggle; cooperated; sentenced to $250,000 community service paid to Nicaragua Ministry of Fisheries for enforcement and Candella received 10 months probation Defendants Peter Silver and Perdro Pereira imported over 190,000 lbs ($2.8 million) of undersized lobster from Nicaragua. Each pled to one count of conspiracy to violate the Lacey Act and smuggle; sentenced to 366 days in prison and 37 months in prison respectively.

15 U.S. v. Pego, et al (S.D. Fla. 2005) Indicted in September; alleges attempt to import 53,000 pounds of toothfish ($314,397.30) from Singapore into Miami; Lacey Act false records; 18 USC Defendants fugitive (Spanish national and Uruguayan corporation)

16 Pangasius Cases Panhandle Virginia Star Thomas George Charged: Talon, Delaney, Katz

17 Prosecution Modalities False Statements, in violation of 18 USC 1001 On permit applications (e.g. US v. Tomeny,, 144 F.3d th Cir. 1998) On catch reports submitted to feds or to the state but relied on by the feds (e.g. US v. Northern Victor) Lacey Act false labeling Lacey Act violations based on underlying foreign or state laws; smuggling based on Lacey Act

18 Other Useful U.S. Statutes Conspiracy FDA Misbranding CITES/ESA Smuggling Money Laundering (esp 1956(a)(2)(A)) 1509; 1519