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UNITED STATES v. MCDOUGALL

October 4, 1998

UNITED STATES OF AMERICA, -vs- ROBERT MCDOUGALL, RICHARD GOODFRIEND, GREGORY BENNEY, LYNDON HAAS, MICHAEL PORTER, and WATERFRESH FOODS, INC., Defendants.


The opinion of the court was delivered by: MCAVOY

MEMORANDUM-DECISION & ORDER

 McAVOY, CHIEF JUDGE:

 Defendant Michael Porter ("Porter") is charged as part of a multi-defendant thirty-one count Superseding Indictment (the "indictment") with: (1) one count of conspiracy to violate the Lacey Act, 16 U.S.C. § 3372 et seq., covering the period 1983 to the present; (2) three counts relating to the illegal export and import of the contaminated fish during 1995, 1996, and 1997, in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(2)(A) and 3373(d)(1)(A); and (3) sixteen counts of submitting false Canadian Customs forms that failed to disclose the existence of the fish that were transported in foreign commerce, during the period April 20, 1996 through May 9, 1997, in violation of the Lacey Act, 16 U.S.C. §§ 3372(d)(1),(2) and 3373(d)(3)(A)(i).

 Porter now moves to dismiss the indictment. Co-defendants Waterfresh Foods, Inc. ("Waterfresh Foods"), Richard Goodfriend ("Goodfriend"), and Gregory Benney ("Benney"), also charged with conspiracy to violate the Lacey Act and with substantive offenses thereunder, have joined in Porter's motion to dismiss the indictment.

 I. The Government's Allegations

 Defendants Goodfriend and Benney are commercial fishermen licensed pursuant to the New York State Department of Environmental Conservation ("DEC"). They are charged with catching and failing to return substantial quantities of eel and walleye from Lake Ontario and New York waters in violation of N.Y. COMP. CODES R. & REGS. tit. 6, § 37.1(b) (1997) ("Regulation 37.1") *fn1" and N.Y. ENVTL. CONSERV. LAW § 11-1319(2) (Consol. 1997) ("ECL § 11-1319") *fn2" New York law prohibits commerce in these fish because of health and conservation concerns. The commercial fishing licenses of the defendants also prohibit these activities.

 Aware of the ban prohibiting the sale of eel and walleye taken from these waters, Goodfriend and Benney subsequently sold the eel and walleye to a host of fish wholesalers and retailers, located within and outside New York, including Quality Lake Fish ("Quality Lake"), located in Brewerton, New York. Quality Lake thereafter resold substantial quantities of eel and walleye in interstate and foreign commerce to defendants Porter and Waterfresh Foods, a Canadian entity. Porter, a truck driver employed by Waterfresh Foods, was instructed to pick up the eel and walleye from Quality Lake and deliver them to Waterfresh Foods, where they would be resold worldwide to consumers in interstate commerce.

 II. Discussion

 Porter raises numerous grounds for dismissing the indictment. The Court will address each argument seriatim.

 A. Predicate State Offense Requirement

 Porter argues that the Lacey Act offenses charged in the indictment, which are predicated on violations of Regulation 37.1 and ECL § 11-1319, must be dismissed because his alleged conduct did not violate the state law or regulation that serve as the predicate for the Lacey Act offenses. Accordingly, Porter's motion to dismiss focuses on whether the Lacey Act counts are sustainable based upon Regulation 37.1 and ECL § 11-1319.

 The Lacey Act serves as a federal tool to aid states in enforcing their own fish and wildlife laws by imposing federal sanctions for interstate or foreign commerce in fish and wildlife that have been taken, possessed, transported, or sold in violation of any state, federal, or foreign law. See S. REP. No. 97-123, at 2 (1981), reprinted in 1981 U.S.C.C.A.N. 1748, 1748-49. Accordingly, to prosecute a case under the Lacey Act, the government has the burden to first prove a violation of a valid state, federal, or foreign law or regulation. See United States v. Sohappy, 770 F.2d 816, 823 (9th Cir. 1985), cert. denied, 477 U.S. 906, 91 L. Ed. 2d 568, 106 S. Ct. 3278 (1986); United States v. Powers, 1989 U.S. Dist. LEXIS 6832, *3, 1989 WL 69255, at *2 (D. Idaho March 9, 1989), aff'd, 923 F.2d 131 (9th Cir. 1990). In this sense, the underlying state, federal or foreign law or regulation serve as the trigger for enforcement of certain Lacey Act provisions. See 16 U.S.C. § 3372(a); see also United States v. Borden, 10 F.3d 1058, 1062 (4th Cir. 1993); United States v. Miller, 981 F.2d 439, 442 (9th Cir. 1992), cert. denied, 508 U.S. 966, 124 L. Ed. 2d 693, 113 S. Ct. 2945 (1993) ("Consequently, the federal law is not violated if the state law is not violated."). Other offenses, however, such as the false labeling and marking provisions, "stand on their own" and can independently sustain a Lacey Act prosecution. See S. REP. No. 97-123, at 4; 16 U.S.C. §§ 3372(b),(d).

 Porter argues that because his conduct does not specifically violate Regulation 37.1 or ECL § 11-1319, the substantive Lacey Act charges that are predicated on state law must be dismissed. This argument, however, is inconsistent with the clear statutory language and federal precedent interpreting the Lacey Act.

 The unlawful conduct that Porter is charged with has two distinct elements. First, the eel and walleye must be taken, possessed, transported, or sold in violation of a valid state law or regulation. Second, the eel and walleye must be imported, exported, transported, sold, received, acquired or purchased in interstate or foreign commerce. See 16 U.S.C. § 3372(a)(2)(A). Subsequent provisions provide that felony criminal penalties can be imposed if Porter knowingly imported or exported the eel and walleye, knowing that they were taken, possessed, transported, or sold in violation of state law or regulations. See 16 U.S.C. § 3373(d)(1)(A); see also United States v. Romano, 929 F. Supp. 502, 504 (D. Mass. 1996). Because knowledge of the underlying state law or regulation is an element of the offense, the government must establish that Porter acted with knowledge that his actions were unlawful under a valid state law which was violated. See United States v. Miranda, 835 F.2d 830, 832 (11th Cir. 1988); United States v. Jonas Bros., 368 F. Supp. 783, 784 (D. Alaska 1974). The government is not required to prove that Porter himself violated the underlying state law or regulation to hold him liable under the Lacey Act's criminal penalties. See United States v. Lee, 937 F.2d 1388 (9th Cir. 1991), cert. denied, 502 U.S. 1076, 117 L. Ed. 2d 141, 112 S. Ct. 977 (1992). In Lee, the Ninth Circuit confronted this issue in an illegal salmon import operation and held:

 
It is irrelevant whether the [defendant] would be liable at all under the regulation. The [Lacey] Act's criminal penalty provision does not require that the [defendant] violated the regulation, but only that they took part in importing the salmon when they knew, or should have known, that the salmon had been taken in violation of the regulation.

 Id. at 1393.

 Thus, it is sufficient for the government to establish that Porter acted with knowledge that either the commercial fishermen or his employer violated Regulation 37.1 and ECL § 11-1319 to sustain the Lacey Act offenses against him. Accord United States v. Todd, 735 F.2d 146, 151 (5th Cir. 1984), cert. denied, 469 U.S. 1189, 83 L. Ed. 2d 964, 105 S. Ct. 957 (1985). Accordingly, Porter's motion to dismiss fails on this ground.

 B. Jurisdiction For False Labeling Offenses

 Porter next argues that the Lacey Act offenses charging the submission of false Canadian customs forms should be dismissed because the Court lacks jurisdiction. See 16 U.S.C. §§ 3372(d)(1),(2).

 Once again, Porter's argument misconceives the inquiry and contradicts the clear statutory language of the Lacey Act. Specifically, Porter mistakes the filing of false export declarations for fish transported from New York to Canada as violations of Canadian law that cannot be prosecuted under the Lacey Act. Porter then compounds his error by misreading the holding of United States v. Molt, 599 F.2d 1217 (3d Cir. 1979). In Molt, the court held that a foreign customs ordinance was "not for the protection of wildlife, but a revenue law," and therefore did not trigger the applicability of the Lacey Act. Id. at 1219. The distinction made by the Molt court centered on the purpose of the underlying law, and did not, as Porter argues, limit the applicability of Lacey Act prosecutions based on violations of foreign law. *fn3"

 The false labeling offenses provide an independent basis to sustain a Lacey Act violation and therefore do not require a violation of an underlying state or foreign law. See H. REP. No. 100-732 at 6 (1988); S. REP. No. 97-123 at 4. This finding is consistent with a plain reading of the statute and congressional intent to provide for an additional enforcement mechanism in light of the difficulty of proving that fish and wildlife were illegally taken in violation of foreign law. See H. REP. No. 100-732 at 6. In United States v. Allemand, 34 F.3d 923 (10th Cir. 1994), the court confronted this issue in a case where defendants were charged under the Lacey Act for filing false records in connection with wildlife exported from Minnesota to Canada. See id. at 926; 16 U.S.C. §§ 3372(d), 3373(d)(3)(A)(i). The Allemand court held that the filing of false export forms itself was unlawful, independent of whether the defendants had a duty to complete the forms under applicable foreign law. See Allemand, 34 F.3d at 926. Thus, Porter's alleged submission of false Canadian customs forms constitutes a violation under the Lacey Act for which the Court has jurisdiction.

 C. Validity of Regulation 37.1

 The statutory authority for enacting Regulation 37.1 is found in N.Y. ENVTL. CONSERV. LAW § 11-0325(1) (Consol. 1997) ("ECL § 11-0325(1)"), *fn4" which establishes the criteria under which the DEC is authorized to promulgate regulations to control dangerous diseases. In challenging the validity of Regulation 37.1 as a necessary precursor to trigger the Lacey Act offenses, Porter argues that the Department of Health ("DOH") never certified that a disease existed with respect to American eels at the time that Regulation 37.1 was enacted. See Def. Mem. of Law at 27. Porter challenges both the DOH's finding that a disease existed and the sufficiency of the certification by the Commissioner of Health, prior to the promulgation of Regulation 37.1. See id. at 27.

 1. Certification Requirement

 As previously set forth, ECL § 11-0325(1) expressly requires that either the Commissioner of Health or the Commissioner of Agriculture and Markets certify "that a disease, which endangers the health and welfare of . . . the human population, exists in any area of the state, or is in imminent danger of being introduced into the state." N.Y. ENVTL. CONSERV. LAW § 11-0325(1); see also United States v. Gehl, 852 F. Supp. 1150, 1169 (N.D.N.Y. 1994). This certification is a prerequisite to any measures or regulations promulgated by the DEC. See Gehl, 852 F. Supp. at 1169.

 Porter argues that DOH certification was not issued prior to the promulgation of Regulation 37.1. This argument, however, is without merit as it overlooks a letter from Robert P. Whalen, Commissioner of Health, which certified that the "health and welfare of the human population may be endangered by the consumption of eels taken from Lake Ontario by reason of a concentration of certain specified pesticides, Mirex and Kepone." Gov't Ex. 6, Aff. of Lawrence C. Skinner at P 14 (referencing Letter of Robert P. Whalen, Commissioner of Health, dated September 17, 1976). Immediately following this certification, the DEC issued an amended regulation that prohibited possession of American eel. See ...


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