Trafficking in Wildlife—Honduran Lobsters

A Honduran businessman who was convicted in 2000 of smuggling lobsters into the United States from the Honduras will not be able to have it reversed.^[1] David Henson McNab was convicted in Mobile, Alabama, of violating the Lacey Act which prohibits people from importing plants and wildlife that were taken in violation of the laws of a foreign country.^[2] Mr. McNab lost his appeals even though the Honduras changed its laws and lobbied for Mr. McNab’s release.^[3] Even though the Honduran government worked closely with the United States during Mr. McNab’s prosecution, the Attorney General of that country now maintains that Mr. McNab broke no laws in that country and the key witness, the top lawyer for Honduras’ Ministry of Livestock and Agriculture, has recanted her testimony.^[4]

After losing an appeal to the Eleventh Circuit Court of Appeals, a petition for a writ of certiorari was denied at the Supreme Court of the United States. Mr. McNab then filed a writ of habeas corpus under 28 U.S.C. § 2255, arguing that “new evidence never before considered on the merits requires that his conviction be vacated,” that “the Eleventh Circuit violated his due process rights by refusing to apply a change … in the law,” that “his due process rights were violated by the trial court’s jury instructions with respect to a Honduran law not charged in the indictment,” and that “his sentence should be vacated based on the United States Supreme Court decision in Booker v. United States, 125 S. Ct. 738 (2005).”^[5]

In refusing to reverse Mr. McNab’s sentence, US District Judge Charles Butler, Jr. noted that Mr. McNab’s argument that “new evidence” does not meet the standard for a new trial based on newly discovered evidence because, “petitioner’s brief uses the term ‘new evidence’ as opposed to ‘newly discovered evidence.’”^[6] The Court also notes that Mr. McNab failed to demonstrate why this opinion could not have been obtained earlier, with the exercise of due diligence.^[7]

The Court also rejected Mr. McNab’s argument that the Eleventh Circuit violated his due process rights; it noted that the argument that the Honduras government changed its opinion of the law between the time that Mr. McNab’s trial ended and his appeal began, and that the Eleventh Circuit had already addressed that scenario.^[8]

On Mr. McNab’s third argument, that he was convicted on charges not included in the indictment, the Court noted that this, too, had been addressed by the Eleventh Circuit, and “simply found that it was not worthy of extensive discussion.”^[9]

Finally, regarding Mr. McNab’s Booker claim, the Court simply notes that “petitioner’s judgment became final prior to the Supreme Court’s decision in Booker,” and therefore that case’s holding did not apply to him.^[10]

Mr. McNab can now appeal the District Court’s denial of the writ of habeas corpus.

Lacey Act
Under 16 U.S.C. § 3372(a)(2)(A), it is unlawful for any person to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce 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.^[11]

The punishment for each violation of section 3372 is a fine of not more than $20,000, imprisonment for up 5 years, or both.^[12]

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[1] Judge Won’t Reverse Prison Term for Honduras Lobster Smuggler, Columbus Ledger-Enquirer, Oct. 19, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] United States v. McNab, No. 05-0107-CB at 6 (S.D. Ala. 2005).
[6] Id. at 9 n. 6.
[7] Id. at 9.
[8] Id. at 12.
[9] Id. at 12-13.
[10] Id. at 14.
[11] See also United States v. McNab, 324 F.3d 1266, __, 2003 U.S. App. LEXIS 5561 at *17 (11th Cir. 2003), available here (PDF).
[12] 16 U.S.C. § 3373(d)(1).