There are literally hundreds of thousands of ways you can violate federal law. One of the more absurd ways to become a criminal in the United States is to violate a civil regulation of another nation.
The Lacey Act is a federal law which criminalizes each and every harvesting, fishing and hunting regulation of every country on earth. The origin of this law was well-meaning. The intent was to allow prosecution of an American who might, for example, travel to Kenya and poach elephants in violation of local law. However, in practice, this law creates absurdly severe penalties to literally millions of minor infractions worldwide.
Congress did not survey every foreign law in existence prior to passing the Lacey Act, and it has surely not kept abreast of new laws or regulations as they are created across the globe. There has been no review about whether these foreign policies have any relation to our American values or principles. Nevertheless, nearly every single environmental regulation on the planet could potentially be prosecuted as a felony in the United States. This has resulted in some spectacularly unjust prosecutions. Consider the prosecution of David McNab and his business associates.
McNab is a Honduran citizen who, in 1999, operated a fishing business which had been in his family for generations. As a part of his business, he caught and sold lobster to importers from the United States. Much of his catch would end up on the tables of large American restaurant chains such as Red Lobster. In February 1999 investigating agents with the National Marine Fishery Service (NMFS) seized approximately 70,000 pounds of lobster from the largest shipment of seafood Mr. McNab had ever sold to a U.S. importer. About six months later, Mr. McNabb and three U.S. citizens were charged with federal crimes. The U.S. citizens included the two seafood importers who purchased McNab’s catch and the California restaurant distributor who planned to sell the lobster.
Agents with NMFS alleged that McNab violated three civil Honduran fishing regulations when he caught the lobster which was eventually imported into the United States. The civil regulations allegedly prohibited the following:
1) Exporting seafood in any container other than a cardboard box;
2) Harvesting lobsters with tails shorter than 5 1/2 inches; and
3) Destroying or harvesting eggs of aquatic species for profit.
For health and sanitary reasons, the lobster McNab exported was shipped in plastic bags instead of cardboard boxes. Approximately one out of every 30 of the lobsters exported had tails shorter than 5 1/2 inches. However, the NMFS publicly published market prices for two-ounce and three-ounce Honduran lobsters, which could not anatomically have a tail longer than 5 1/2 inches, and the NMFS admitted that Honduran lobsters of this size are routinely sold in the United States. Finally, about 7 percent of McNab’s catch had the ability to bear eggs, but no eggs were harvested or destroyed.
After years of litigation, McNab and his U.S. business partners were convicted on violations of the Lacey Act for supposedly violating Honduran law. McNab and the two importers were each sentenced to serve eight years in federal prison. The restaurant distributor was sentenced to serve two years. If any of these individuals had been charged under Honduran law, then they would have had to pay a fine.
To add to the absurdity, on appeal it was shown that the Honduran regulation relating to tail-length had never had the force of law, and it had been declared void by the Honduran Court of First Instance of Administrative Law. Furthermore, it was discovered that the regulation regarding the cardboard box packaging had been repealed in 1995, and the regulation regarding the egg harvesting had been retroactively repealed such that it was not applicable to the date when McNab had caught the lobster in question. Therefore, it was proven on appeal that no one had actually violated Honduran law after all. Indeed, the Honduran attorney general filed a brief with the federal appellate court essentially explaining the same, that no Honduran law had been violated.
Despite this, all four convictions were upheld on appeal. The federal judges explained their decision by insisting that it would be unwise to question the United States federal prosecutor’s interpretation of Honduran law, and they disregarded the brief of the Honduran attorney general by essentially declaring the nation’s government a banana republic. The irony of this declaration was apparently lost on the court. Consequently, four individuals’ lives and livelihoods were ruined. Four people attempting to earn a living and support their families by engaging in legal commercial activity were sent to prison for violating foreign laws which might not have even existed.
It is this kind of overcriminalization on which I want to shine a light. We have too many laws in this nation. You have probably violated one of them without knowing it. If you are unlucky enough to find yourself in the crosshairs of an investigator from within one of the alphabet soup federal agencies out there, then pray for leniency. The law is not on your side.
Finally, to continue my Sisyphean effort to inform citizens of absurd federal laws, please be aware that it is a federal crime to find a nickel on the ground at the National Institute of Health in Montgomery County, Md. and fail to immediately give it to the police (40 USC § 1315 & 45 CFR § 3.5).
John Judkins is a Greenfield attorney.