United States v. Gaston Saunders , 828 F.3d 198 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4498
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
GASTON L. SAUNDERS,
Defendant - Appellee.
------------------------
ATLANTIC STATES MARINE FISHERIES COMMISSION,
Amicus Supporting Appellant.
No. 15-4501
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
BRYAN H. DANIELS,
Defendant - Appellee.
------------------------
ATLANTIC STATES MARINE FISHERIES COMMISSION,
Amicus Supporting Appellant.
No. 15-4505
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
MICHAEL POTTER,
Defendant - Appellee.
------------------------
ATLANTIC STATES MARINE FISHERIES COMMISSION,
Amicus Supporting Appellant.
No. 15-4506
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
STEPHEN DANIELS,
Defendant - Appellee.
------------------------
ATLANTIC STATES MARINE FISHERIES COMMISSION,
Amicus Supporting Appellant.
2
Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville and Wilmington. James
C. Fox, Senior District Judge. (4:14-cr-00008-F-1; 4:14-cr-
00011-F-1; 2:15-cr-00006-F-1; 2:15-cr-00004-F-1)
Argued: May 12, 2016 Decided: July 5, 2016
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and Norman K.
MOON, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
Reversed and remanded by published per curiam opinion.
ARGUED: Brian C. Toth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant. Joseph Edward Zeszotarski,
Jr., GAMMON, HOWARD, ZESZOTARSKI, PLLC, Raleigh, North Carolina,
for Appellees. ON BRIEF: John C. Cruden, Assistant Attorney
General, Environment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellant. John P. O’Hale, NARRON, O’HALE &
WHITTINGTON, PA, Smithfield, North Carolina, for Appellees.
Sean H. Donahue, DONAHUE & GOLDBERG, LLP, Washington, D.C., for
Amicus Curiae.
3
PER CURIAM:
Four commercial boat captains were charged with violating
the Lacey Act after they caught Atlantic striped bass in federal
waters and later sold them. The Lacey Act, through its
incorporation of a federal regulation, criminalizes the taking
and selling of Atlantic striped bass from federal waters. The
Act, however, exempts from prosecution fishing that is
“regulated by a fishery management plan in effect” under the
Magnuson-Stevens Fishery Conservation and Management Act
(“Magnuson-Stevens Act”). 16 U.S.C. § 3377(a). Citing that
exception, the captains moved to dismiss the indictments.
The district court granted the motions based on two
premises. It first found that a fishery management plan created
by the Atlantic States Marine Fisheries Commission
(“Commission”) and referenced in the Atlantic Striped Bass
Conservation Act (“Bass Act”) must be treated as a plan in
effect under the Magnuson-Stevens Act. 1 Next, the district court
1
The Government asserts error on that point, arguing that
16 U.S.C. § 5158(c)—which catalyzed the district court’s
reasoning—contains a scrivener’s error. That is, Section
5158(c)’s reference to “any plan issued under subsection (a)” is
a textual anomaly, because subsection (a) in fact authorizes
only regulations by the Secretary of Commerce, not plans. The
Government attributes this dissonance to a drafting oversight in
1991 that left the “any plan” language in the statute while
excising related verbiage. Compare Pub. L. No. 100-589, 102
Stat. 2984, at § 6 (Nov. 3, 1988) with Pub. L. No. 102-130, 105
Stat. 626, at § 4(1)-(2) (Oct. 17, 1991).
(Continued)
4
reasoned that the Commission’s plan regulated the boat captains’
activity in federal waters. Thus, the district court found that
the exception applied.
We conclude, however, that the text of the plan created by
the Commission and referenced by the Bass Act in fact regulates
only state coastal waters, and accordingly does not regulate
fishing in federal waters. The only possible hook to federal
waters in the Commission’s plan is the general statement that
the Secretary of Commerce has authority to regulate bass fishing
in federal waters. Even if this statement was enough to say that
the plan regulated federal waters (which it is not), the
provision would be invalid, because the Commission—a collection
of state representatives—has no authority to delegate power over
federal waters to the Secretary of Commerce.
Accordingly, we remand these cases to the district court
with instructions to reinstate the indictments.
I. THE INDICTMENTS
The Appellees Gaston Saunders, Bryan Daniels, Michael
Potter, and Stephen Daniels (hereinafter referred to as
“Captains”) are the captains of commercial fishing vessels.
During 2009 and 2010, the captains each harvested several tons
Because this appeal can be resolved without deciding
whether 16 U.S.C. § 5158(c) contains a scrivener’s error, we do
not reach the issue.
5
of bass from federal waters (known as the “exclusive economic
zone,” or EEZ 2), which they subsequently transported and sold to
commercial seafood dealers. 3
Based on these actions, on January 15, 2015, the Government
brought separate indictments containing multiple Lacey Act
counts against each captain. The Government now appeals the
district court’s dismissal of the indictments against Captains
Potter and Stephen Daniel in full and against Captains Saunders
and Bryan Daniels in part. 4 We consolidated the four cases.
II. THE REGULATORY FRAMEWORK
A. The Lacey Act
The Lacey Act makes it a crime to take wildlife in
violation of some other federal law. Specifically, it is
illegal to, inter alia, transport, acquire, or sell any fish
“taken possessed, transported, or sold in violation of any law,
treaty, or regulation of the United States . . . .” 16 U.S.C. §
3372(a)(1). If one does so “by knowingly engaging in conduct
2 On the eastern seaboard, the EEZ extends from three to
200 miles offshore. See 16 U.S.C. § 1802(11); 50 C.F.R. §
600.10; 48 Fed. Reg. 10,605, 1983 WL 506851 (Mar. 10, 1983).
3 The indictment charged that these bounties involved
bass with a market value greater than $350, as required by the
Lacey Act. See 16 U.S.C. 3373(d)(1)(B).
4 The indictments against Captains Saunders and Bryan
Daniels also included counts for making false statements and
aiding and abetting. Those counts are not before us.
6
that involves” the sale of such ill-gotten fish having a market
value over $350, then he may be imprisoned, fined, or both. Id.§ 3373(d)(1)(B).
Because the Bass Act, described below, forbids anyone from
harvesting, retaining, possessing, or fishing for bass in the
EEZ, the captains allegedly violated the Lacey Act when they
caught several tons of bass in the EEZ during 2009 and 2010.
B. The Bass Act and the Commission
Congress has found that Atlantic striped bass are
commercially, economically, and recreationally important. 16
U.S.C. § 5151(a)(1). Due to their migratory nature, “[n]o
single government entity has full management authority” over
bass. Id. § 5151(a)(2). Congress enacted the Bass Act “to
support and encourage the development, implementation, and
enforcement of effective interstate action regarding the
conservation and management of the Atlantic striped bass.” Id.
§ 5151(b). To accomplish this goal, the Bass Act divides
regulatory authority over Atlantic striped bass into two
distinct, but interrelated, schemes: (1) federal waters and (2)
state coastal waters.
First, Congress outlined the regulation of bass in federal
waters. 16 U.S.C. § 5158; see id. §§ 5152(6), 1802(11); supra
footnote 2. Section 5158(a) commands the Secretary of Commerce
to “promulgate regulations governing fishing for Atlantic
7
striped bass in the exclusive economic zone . . . .” The
Secretary of Commerce must “consult” with, among others, the
Commission when preparing her rules. Id. § 5158(b). In
addition to other standards, her regulations must be “compatible
with the Plan and each Federal moratorium in effect on fishing
for Atlantic striped bass within the coastal waters of a coastal
State.” Id. § 5158(a)(2) (emphasis added).
A state coastal waters “plan” under the Bass Act is a plan
(or amendment to such plan) for managing bass “that is prepared
and adopted by the Commission.” 16 U.S.C. §§ 5152(5), 5152(10).
The Bass Act instructs the Commission to annually determine
whether its member-States have adopted measures for their
“coastal waters” (i.e., zero to three miles offshore) that fully
implement and satisfactorily enforce the Commission’s plan. Id.§ 5153(a); see id. § 5152(3). The Commission then notifies both
the Secretary of Commerce and Secretary of Interior
(“Secretaries”) of each such “negative determination.” Id. §
5153(c); see id. § 5152(3). At that point, the Secretaries
jointly determine whether the particular State is, in fact, in
compliance with the Commission’s plan. If not, the Secretaries
“declare jointly a moratorium on fishing for Atlantic striped
bass within the coastal waters of that coastal State,” violation
of which is punishable civilly. Id. §§ 5154(a), (c). The
prospect of this federally-imposed moratorium therefore acts as
8
an enforcement mechanism against recalcitrant States that refuse
to abide by the Commission’s plan governing state coastal
waters. 5
A brief comment on the Commission’s history further
illuminates the genesis and structure of the Bass Act. States
cannot enter into any agreement or compact without the consent
of Congress. U.S. Const. art. I, § 10, cl. 3. In 1941,
Congress approved the interstate compact that created the
Commission and endeavored to better manage fish populations on
the Atlantic seaboard. Pub. L. No. 77-539, 56 Stat. 267 (May 4,
1942); see also Pub. L. No. 81-721, 64 Stat. 467 (Aug. 19, 1950)
(approving addition of new States and repealing limitation on
the life of the compact); New York v. Atl. States Marine
Fisheries Comm’n, 609 F.3d 524, 528 (2d Cir. 2010); Rhode Island
Fishermen’s All., Inc. v. Rhode Island Dep’t of Envtl. Mgmt.,
585 F.3d 42, 46 (1st Cir. 2009). Under the compact, each State
appoints members to the Commission, which is charged with
investigating conservation measures, offering suggestions for
coordination of the States’ police powers, and presenting
5 See Note, Joseph A. Farside, Jr., Atlantic States
Marine Fisheries Commission: Getting A Grip on Slippery
Fisheries Management, 11 Roger Williams U. L. Rev. 231, 242
(2005) (explaining that “threat of a moratorium” and
corresponding “millions of dollars of lost business” encourages
States to comply with Commission’s plan).
9
recommended legislation to the member-States. 56 Stat. 267-68;
New York, 609 F.3d at 528.
Exercising these powers, the Commission in 1981 issued its
first plan for Atlantic striped bass fishing in state coastal
waters. Atlantic States Marine Fisheries Commission, Fisheries
Mgmt. Rep. No. 1: Interstate Fisheries Mgmt. Plan of the Striped
Bass (Oct. 1981) (“1981 Plan”). Faced with declining bass
populations, the 1981 Plan put forth several “recommended
management measures.” Id. at 1-1 & 1-4. But “attempts at
implementing the plan failed due to [the Commission’s] lack of
direct regulatory authority over the individual Atlantic
states.” Note, Thomas Rapone, The EEZ Solution to Striper
Management: Why the Federal Government Should Ban the Commercial
Harvest of Striped Bass Once and for All, 44 Suffolk U. L. Rev.
567, 569 (2011); see id. at 577 (observing that as the product
of “a mere interstate compact, the [Commission] still lacked the
regulatory authority to force individual states to comply”); New
York, 609 F.3d at 528; see also Atlantic States Marine Fisheries
Commission, Fishery Mgmt. Rep. No. 41, Amend. 6 to the
Interstate Fishery Mgmt. Plan for Atl. Striped Bass, at p.39 §
5.0 (Feb. 2003) (“Amendment 6”) (observing that “Commission does
not have the authority to directly compel state/jurisdictional
implementation of the measures” proposed).
10
Against the backdrop of this collective action problem,
Congress passed the Bass Act in 1984, Pub. L. No. 98-613, 98
Stat. 3187 (Oct. 31, 1984), which functions as the cooperative
federalism scheme explained above and summarized in the chart
below.
State coastal waters Federal waters (EEZ)
(0-3 miles offshore) (3-200 miles
offshore)
States’ regulatory Primary. Secondary.
role Commission designs Commission provides
(via Commission) plan for state input to Secretary
coastal waters and of Commerce as she
annually notifies formulates
the Commerce and regulations for the
Interior Secretaries EEZ.
of non-compliance. § 5158(b).
§ 5153.
Federal regulatory Secondary. Primary.
role Secretaries of Secretary of
Commerce and Commerce issues
Interior make final regulations for the
determinations of EEZ, which must be
non-compliance with “compatible with”
plan and declare Commission’s plan
moratorium in for coastal waters.
offending State’s §5158(a)(2).
coastal waters. §
5154(a).
C. The Lacey Act Exemption
The Lacey Act exempts conduct from prosecution if it was
“activity regulated by a fishery management plan in effect
under” the Magnuson-Stevens Act. 16 U.S.C. § 3377(a) (emphasis
added). A Magnuson-Stevens Act plan is quite different from a
11
plan created by the Commission. Magnuson-Stevens Act plans are
created by one of eight regional councils (or occasionally the
Secretary of Commerce) composed of various state and federal
officials. Id. §§ 1852(a)(1), (b)-(c), 1854(c). The regional
councils themselves are creatures of the Magnuson-Stevens Act,
id. § 1852(a)(1), not an interstate compact like the Commission.
And unlike Commission plans, regional councils’ plans must
include federally-mandated provisions and are subject to final
approval by the Secretary of Commerce. Id. §§ 1853(a), 1854(a).
In any event, to resolve these appeals we need only decide
whether the Commission’s plan (which the district court treated
as a Magnuson-Stevens Act plan) regulates the captains’ activity
of bass fishing in federal waters. See supra footnote 1. To
that question we now turn.
III. DISCUSSION
“We review a district court’s decision to grant a motion to
dismiss an indictment de novo.” United States v. Good, 326 F.3d
589, 591 (4th Cir. 2003).
A. The Commission’s plan
The district court concluded that the Commission’s plan
authorizes the Secretary of Commerce to regulate striped bass in
federal waters, the EEZ. It further noted that the Secretary of
Commerce promulgated a regulation—50 C.F.R. § 697.7(b)—
“prohibiting fishing for Atlantic striped bass in the EEZ,”
12
which is “the same regulation under which [defendants are] being
prosecuted.” Thus, the district court held the Commission’s plan
regulates the captains’ conduct (by way of the Secretary of
Commerce’s rule that the plan “authorized”), and the Lacey Act
exemption applies. We disagree.
1. The plan does not authorize the Secretary of Commerce’s
regulation
As an interpretive manner, the Commission’s plan does not
authorize the Secretary of Commerce to issue the regulation
banning fishing for bass in federal waters.
The text of the Commission’s plan does not purport to grant
any power to regulate federal waters to the Secretary of
Commerce. In fact, a portion of a 2003 amendment to the
Commission’s plan reads:
Management of striped bass in the EEZ is within the
Jurisdiction of the Secretary of Commerce. The
responsibilities of the Secretary of Commerce are
detailed in the Atlantic Striped Bass Conservation
Act.
Amendment 6, at p.38 § 4.8.8.1. This provision is a simple
acknowledgement by the Commission of the Secretary of Commerce’s
independent authority under the Bass Act. See 16 U.S.C. §
5158(a); 55 Fed. Reg. 40,181, 1990 WL 351745 (Oct. 2, 1990); 50
C.F.R. § 697.1. Moreover, Section 2.4 of Amendment 6 defines
the plan’s “management unit” to expressly “exclud[e] the
Exclusive Economic Zone (3-200 nautical miles offshore).” Id.13
at v & 20; see id. at vii & 39 § 4.9 (recognizing that
“management of striped bass in the exclusive economic zone (EEZ)
is the responsibility of the Secretary [of Commerce],” while
also making non-binding recommendations to the Secretary of
Commerce regarding federal waters as contemplated by 16 U.S.C.
§§ 5158(a)(3), (b)). In other words, the Commission’s plan
disclaimed any regulatory role over federal waters and instead
recognized the regulation of federal waters as part of the
powers granted to the Secretary of Commerce by the Bass Act.
In sum, nothing in the Commission’s plan purports to grant
authority over federal waters to the Secretary of Commerce.
2. The plan cannot authorize the Secretary of Commerce’s
regulation
Even had the Commission tried to endow the Secretary of
Commerce with some form of power over federal waters, the
attempt would have been legally meaningless.
The Secretary of Commerce is the head of an executive
department of the United States and a member of the President’s
cabinet. See 5 U.S.C. § 101; U.S. Const. Art. II, § 2, cl.2. In
other words, she derives her authority from federal sources—acts
of Congress and the inherent Article II powers of the Executive
Branch. As it pertains to this case, her power to regulate
federal waters comes directly from the Bass Act. 16 U.S.C. §
5158(a).
14
The Commission, by contrast, is the creature of an
interstate compact that binds only the sovereign States that are
parties to it. See Pub. L. No. 77-539, 56 Stat. 267 (May 4,
1942); New York, 609 F.3d at 526. It is, for instance, “not a
federal agency within the meaning of the” Administrative
Procedure Act, i.e., not an “authority of the Government of the
United States.” New York, 609 F.3d at 527. “The fact that the
[Commission] was created by an interstate compact and approved
by Congress does not alter th[e] analysis.” Id. at 532; see id.
at 533 (“we cannot escape the fact that the entity itself is an
aggregation of states”).
Simply put, the Commission, as a compilation of State
representatives, is charged with regulating the States’ own
waters. See id. at 527; Medeiros v. Vincent, 431 F.3d 25, 27
(1st Cir. 2005). The Secretary of Commerce regulates federal
waters because that is what Congress told her to do in the Bass
Act. The Secretary of Commerce needs nothing further, and the
Commission has nothing to bestow on her.
B. Void for Complexity
As an alternative ground for affirming the district court,
the captains ask us to find that the statutory scheme here is
void for vagueness. We disagree with the captains’ argument.
A statute is unconstitutionally vague if it “(1) ‘fails to
provide people of ordinary intelligence a reasonable opportunity
15
to understand what conduct it prohibits’ or (2) ‘authorizes or
even encourages arbitrary and discriminatory enforcement.’”
United States v. Shrader, 675 F.3d 300, 310 (4th Cir. 2012)
(quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). The
captains present only the first theory. In assessing the
existence of fair notice, we consider “whether a statute’s
prohibitions are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently understand and
comply with.” Id. (internal quotation omitted).
The captains’ vagueness argument contains an oddity and an
irony. The oddity is that vagueness challenges usually target a
particular word or phrase as critically deficient. 6 Here,
however, the captains launch a broadside attack on the entire
“statutory framework” as unconstitutionally “convoluted and
confusing.”
The irony is that this claimed convolution is mainly the
product of the exceptionally novel (and ultimately unsupported)
reading of the Lacey Act, Bass Act, and the Commission’s plan
6 See, e.g., Johnson v. United States, -- U.S. --, 135
S. Ct. 2551 (2015) (voiding “residual clause” in Armed Career
Criminal Act); United States v. Shrader, 675 F.3d 300, 310-12
(4th Cir. 2012) (evaluating statutory terms “harass,”
“intimidate,” and “course of conduct”); Martin v. Lloyd, 700
F.3d 132, 136 (4th Cir. 2012) (courts must place particular
“phrases or words” in context when considering a vagueness
challenge).
16
that the captains urged below. The Government’s theory in the
indictments was straightforward: the Lacey Act criminalizes
taking wildlife in violation of a federal regulation; a federal
regulation under the Bass Act makes it illegal to fish for bass
in federal waters; the captains fished for bass in federal
waters; therefore, the captains committed Lacey Act crimes.
To support their position, the captains tally the number of
statutes, plans, and regulations they say must be consulted to
divine whether their conduct was illegal. But counting the
number of laws in a case is a poor way to decide a due process
challenge: Our sister circuits have squarely held that
regulatory complexity does not render a statute (or set of
statutes) unconstitutionally vague.
We recognize that putting together the pieces of this
regulatory puzzle is not easy. To understand the crime
with which Defendant was charged, one must look at
four sources and read them together . . . . But a
statute does not fail the vagueness test simply
because it involves a complex regulatory scheme, or
requires that several sources be read together, and
Defendant has not directed us to a single case in
which we have held otherwise.
United States v. Zhi Yong Guo, 634 F.3d 1119, 1122 (9th Cir.
2011); see United States v. Griffith, 85 F.3d 284, 288 (7th Cir.
1996) (“The statutory structure involved is admittedly somewhat
complicated—it takes three steps to get from state prostitution
to federal money laundering. But complication is not tantamount
to unconstitutional vagueness. Here, each step in the statutory
17
analysis is well-defined.”) (emphasis in original). We think
the principle of law in these cases is sound. Moreover, a
“statute need not spell out every possible factual scenario with
‘celestial precision’ to avoid being struck down on vagueness
grounds.” United States v. Whorley, 550 F.3d 326, 334 (4th Cir.
2008).
We hasten to add that the straightforward prohibition here—
colloquially, “don’t fish for bass in federal waters”—has been
on the books and readily comprehensible to those in the fishing
industry (much less the general population) for over a quarter-
century. 55 Fed. Reg. 40,181, 1990 WL 351745 (Oct. 2, 1990);
see Atlantic States Marine Fisheries Commission, Addendum IV to
Amend. 6 to the Interstate Fishery Mgmt. Plan, at p.5 § 2.3.3
(Oct. 2014) (“Federal waters . . . ha[ve] been closed to the
harvest, possession and targeting of striped bass since 1990”).
Further, “economic regulation is subject to a less strict
vagueness test because its subject matter is often more narrow,”
and because market participants “can be expected to consult
relevant legislation in advance of action.” Vill. of Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498
(1982); see United States v. Sun, 278 F.3d 302, 309 (4th Cir.
2002).
18
The Lacey Act also contains a scienter requirement (two of
them, in fact), thus forcing the Government to prove the
captains’ knowledge.
Any person who violates [inter alia, 16 U.S.C. §
3372(a)] by knowingly engaging in conduct that
involves the sale or purchase of, the offer of sale or
purchase of, or the intent to sell or purchase, fish
or wildlife or plants with a market value in excess of
$350, knowing that the fish or wildlife or plants were
taken, possessed, transported, or sold in violation
of, or in a manner unlawful under, any underlying law,
treaty or regulation, shall be fined not more than
$20,000, or imprisoned for not more than five years,
or both.
16 U.S.C. § 3373(d)(1)(B). A “scienter requirement alone tends
to defeat” vagueness challenges to criminal statutes. United
States v. Jaensch, 665 F.3d 83, 90 (4th Cir. 2011); see Gonzales
v. Carhart, 550 U.S. 124, 149 (2007) (“scienter requirements
alleviate vagueness concerns”); Colautti v. Franklin, 439 U.S.
379, 395 & n.13 (1979) (recognizing “that the constitutionality
of a vague statutory standard is closely related to whether that
standard incorporates a requirement of mens rea”); United States
v. McLean, 715 F.3d 129, 137 (4th Cir. 2013); United States v.
Shrader, 675 F.3d 300, 311 (4th Cir. 2012); see also United
States v. Lee, 937 F.2d 1388, 1394-95 (9th Cir. 1991)
(sustaining Lacey Act conviction against vagueness challenge due
19
to scienter requirement). Consequently, we find no merit to the
captains’ vagueness argument. 7
* * *
We conclude that the Lacey Act, 16 U.S.C. § 3377(a), does
not except from prosecution the captains’ conduct alleged in the
indictments. We also reject the contention that the regulatory
regime governing the captains’ actions is unconstitutionally
vague. Accordingly, we reverse the orders of the district court
dismissing the indictments and remand the cases with
instructions that the indictments be reinstated.
REVERSED AND REMANDED
7 The captains’ overbreadth argument (in truth, a single
mention of the term) is insufficiently presented and thus
waived. The same conclusion applies to their passing reference
to the rule of lenity, which—like their vagueness challenge—does
not direct us to any particular statutory words or phrases that
we should interpret leniently.
20