POLITICS:

Fisherman's tale at heart of battle over wildlife-trafficking law

Two very different portraits of Abner Schoenwetter have emerged in recent congressional debates over wildlife-trafficking laws.

In one, Schoenwetter is a hard-working fisherman who -- along with three co-defendants -- was the unwitting victim of an overly broad federal law and zealous government agents.

In another, he's a calculating seafood importer who made shady deals and dodged law enforcement for years before getting the punishment he deserved.

What's undisputed is that Schoenwetter is a convicted felon, who spent six-and-a-half years in prison after a jury found him guilty of numerous violations of the Lacey Act of 1900, which prohibits trade in illegally harvested wildlife and plants.

Over the past decade, Schoenwetter's case has become a cause célèbre for conservatives worried about the over-criminalization of federal laws. Sen. Rand Paul (R-Ky.) and Rep. Paul Broun (R-Ga.) cited Schoenwetter as they promoted legislation to hamstring the Lacey Act.

Most grating to the right is the Lacey Act provision banning the importation of "fish or wildlife taken, possessed, transported, or sold in violation of ... any foreign law."

The bill would remove all references to foreign law and downgrade penalties from criminal to civil.

In testimony before the House Natural Resources Committee last week, Paul said he was outraged when he learned about the sentence that Schoenwetter and one of his associates, David McNab, received in 2001 (E&E Daily, May 9).

"There are violent criminals who spend less time in prison than did these two innocent men," Paul said in testimony submitted to the committee.

But defenders of the Lacey Act and federal prosecutors and agents involved in the case have accused Paul and Broun of spinning a fish tale of their own.

In response to Paul's testimony, Rep. Earl Blumenauer (D-Ore.) wrote an op-ed for The Huffington Post that blasted the Kentucky senator for mischaracterizing the Schoenwetter case.

"At the center of Senator Paul's testimony was an oft-repeated, yet apocryphal, story about two American fishermen who were unjustly prosecuted under the Lacey Act for transporting their catch in cardboard containers instead of plastic," Blumenauer wrote. "I would be outraged, too ... if the story were even remotely true."

The criticism from lawmakers particularly perturbs John Webb, a retired federal prosecutor who oversaw the case.

"It's incredibly overstated," Webb said.

Case history

On Feb. 3, 1999, Paul Raymond, an agent with the National Marine Fisheries Service, received an anonymous fax indicating that the M/V Caribbean Clipper, due to arrive in Bayou La Batre, Ala., two days later, would include "undersized lobster tails, a violation of Honduran law."

U.S. officials checked with the Honduran government and were assured the undersized spiny lobster tails were illegal there. And the following month, the shipment was seized.

It emerged that there were undersized lobster tails in the shipment and that the cargo had not been correctly processed. The cargo was in bulk plastic bags, rather than packed in boxes, as is normal for lobsters that have been processed.

The defendants -- Honduran citizen McNab and Americans Schoenwetter, Robert Blandford and Diane Huang -- subsequently faced a 47-count indictment that hinged on the Lacey Act's foreign law provision.

The Lacey Act violation underpinned other counts in the indictment involving allegations of conspiracy, smuggling and money laundering. The case went to trial after the judge held a hearing to determine that the Honduran laws in question were valid and enforceable.

In August 2001, a jury found the defendants guilty on multiple counts. McNab, Blandford and Schoenwetter were sentenced to eight years in prison, while Huang received a two-year term.

In a March 2003 ruling, the Atlanta-based 11th U.S. Circuit Court of Appeals upheld the convictions in a 2-1 decision.

The Supreme Court subsequently decided against reviewing the ruling.

The case was over.

Bag versus box

When critics of the Lacey Act review the case, they inevitably bring up the fact that lobsters were shipped in the wrong packaging.

The issue played a starring role in a mini-documentary about the case released last fall by conservative think tank the Heritage Foundation.

"Suppose that for the entirety of those twelve years you had always packaged your shipments using plastic bags rather than cardboard boxes," an introduction to the documentary on the foundation's website says. "Suppose that there is no U.S. law requiring you to use anything other than plastic. It would never occur to you that you might be charged with a federal crime and sentenced to over 8 years in federal prison because a third federal agency, the National Marine [Fisheries] Service, decided that you had violated another nation's obscure -- and invalid -- regulation requiring cardboard rather than plastic."

Prosecutors insist the packaging issue is misleading at best, in part because the primary basis of the prosecution was on the size of the lobster tails, not on the packaging.

As McNab's own brief in the 11th Circuit noted, "the principal charge against McNab was that some of his crew kept some percentage of lobsters with a tail length shorter than 5.5 inches."

It's true that violations also included packaging the lobsters incorrectly, but that was not the key part of the prosecution, Webb said.

"The notion the case was about packaging is incorrect," he said. "Packaging was the means by which the crime was concealed. It was the mechanism to conceal the extent of overharvesting."

Honduran law

Another of the tales told about the case is that the defendants were convicted of violating a phantom Honduran law.

This is largely because the Honduran government abruptly changed its position after the convictions. Before and during the trial, Webb and others consulted with Honduran officials and were repeatedly told that the defendants had violated several laws.

But on appeal, the Honduran government filed an amicus brief that undercut the prosecution and presented the three-judge panel with a more complicated task.

As Judge Charles Wilson noted in the majority opinion, the court was required to decide whether to abide by a foreign government's new representations to the court when they "directly contravene its original position upon which the government and our courts relied."

The court ended up conducting its own survey of the law in question. It found the prosecutors had "solicited and received the assistance" of relevant Honduran officials during the investigation and had been given accurate information. Judge Peter Fay disagreed with that view in his dissenting opinion, in which he said it wasn't clear what the Honduran government's official view was until it filed the amicus brief.

Wilson concluded for the majority that "the Honduran laws used as the underlying predicates for the defendants' convictions fall within the scope of the Lacey Act and were valid and legally binding during the time period covered by the indictment."

'No mere innocents'

When asked about the case that he launched when he decided to pursue the anonymous fax, Raymond, the National Marine Fisheries Service agent, dismisses any suggestion that Schoenwetter and his associates were just fishermen trying to make a living.

"They had done this so many times that our prosecutors and our agents proved in a court that they smuggled in over $15 million worth, and that's very conservative, of illegal lobster tails," Raymond said.

Raymond noted that Schoenwetter and his associates picked an out-of-the-way port, where inspectors aren't as familiar with lobster regulations, to bring in their illegal shipments. Court documents also showed that even after being notified that they were the target of a federal investigation, Schoenwetter and one of his associates tried to import additional illegal shipments from a Honduran processing plant first through Los Angeles and, when that failed, through Canada. At one point, Schoenwetter was "financially involved" in a Honduran business linked with the lobster industry, Raymond added.

So to argue that the men were simply unaware of the lobster laws doesn't hold water, Raymond said.

"That may have some merit if I'm a tourist if I buy a straw hat and that hat happens to be [made of] an endangered species. But this was a commercial individual and company that bought lobsters for their livelihood. This is how they made their money," he said.

As Webb pointed out, prosecutors also found a coding system among the invoices that showed McNab and others knew they were violating the Honduran law.

"These are no mere innocents," Webb said.

Crucially, under the Lacey Act, people can be prosecuted only if they "should have or did know" they were violating a foreign law, he added. In the lobster case, prosecutors had to show that was the case when it came to three specific acts: the shipment of undersized lobster tails, the skirting of the processing requirements and the harvesting of egg-bearing lobsters.

"We don't go after the weak and the stupid," Raymond said. "We go after the people who are at the top that know the laws."

Few convictions

That the convictions of Schoenwetter and his co-conspirators have become a rallying cry for those who oppose the broad language of the Lacey Act is perhaps no surprise.

There are few convictions to choose from.

Prosecutions are rare, Webb said. The most powerful tool is in fact the ability of the government to seize illegal imports, Webb said. When it comes to wildlife, prosecutions are much more likely under the Endangered Species Act.

"The idea that this is a frequently used tool ... is a hollow argument," he added.

Another misconception is the claim that any number of foreign laws can be shoehorned into a Lacey Act case.

"The Lacey Act is no longer about conservation," Georgia Rep. Broun said at a Heritage Foundation event last week. "American citizens are now faced with prosecution based upon those foreign laws and regulations that could be concerned with labor laws, or minimum wage rules, or tax laws or any other kind of foreign law or regulation."

That description is "not correct," Webb said. Although he conceded that some laws not directly related to conservation could be "swept up" by the act, there has to be some kind of connection to fish and wildlife as stated in the text of the Lacey Act.

He posed a hypothetical question: Could a situation in which a truck driver in another country who doesn't have a driver's license drives timber to the nearby port, where it is then exported to the United States, give rise to a violation?

"The answer is a resounding 'no,'" Webb said.

As for why exactly the federal government chose to focus resources on spiny lobsters, that remains a question that officials are reluctant to discuss.

Lurking in the background is the suggestion that the government was hoping to find more than undersized lobsters when agents seized the shipment.

"It's not unusual for South and Central American seafood businesses to be involved in money laundering and drug trafficking," was all Raymond would say. "There are ties there."

In the end, the only contraband found was lobster. That was enough.

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