When the story first broke in 1999, the Mobile Register played it tongue-in-cheek. “The defendants,” wrote reporter Mike Wilson, “have proved model prisoners, detained at present at minus 8 degrees Fahrenheit.”
The originally named defendants were 70,787 pounds of spiny lobster tails. Less than 5 percent of them were, horror of horrors, too short – which may or may not have been a violation of Honduran sea-harvest laws.
Even worse, the dastardly tails entered Bayou La Batre, Ala., not in the required cardboard containers, but in plastic. Again, Honduran law may have been violated.
U.S. prosecutors, perceiving a dangerous conspiracy, stopped bothering the lobsters and threw their net at the lobster importers. Using something called the Lacey Act, which makes it illegal in the United States to import goods in contravention of another nation’s laws, the prosecutors began building their case.
And building, and building. Because all of the lobster, not just the tails adjudged too short, was in the wrong packaging, that bumped up the “value” of the amount in violation.
And if it were an illegal import, well, that made it “smuggling,” right? And if the importers used the money they earned to buy any goods in the United States, well, that turned the case into “money laundering.”
Suddenly, the allegation of minor civil violations became a major criminal case. Three defendants were given sentences of – get this! – eight years each. In federal prison. To enforce a foreign regulation. About undersized lobsters.
Never mind that the importers openly took the lobsters through Customs, seemingly unaware they were doing anything wrong. Never mind that the U.S. Department of Commerce published an official price list for Honduran lobsters of the very sizes supposedly outlawed.
Never mind that one of the importers was a Honduran businessman, David Henson McNab, who willingly returned repeatedly to the United States to defend himself, apparently thinking it was all a misunderstanding.
And never mind that from the very start, there was conflicting, expert testimony about whether Honduran law was violated at all. The original trial judge, citing a midlevel Honduran official, allowed the trial to continue, all the way to convictions.
Later, when the attorney general of Honduras (!) wrote to say the regulations at issue had been repealed four years before this case began, the appeals court said it was too late.
“There must be some finality with representations of foreign law by foreign governments,” wrote the 11th Circuit Court of Appeals. So: Prison! Even though no existing law had been violated.
McNab and his American co-defendants applied for executive pardons or commutations. No response. Finally, in December 2004, the president of Honduras – yes, the president of the whole country, Ricardo Maduro – wrote a letter to President Bush.
“In the case of Mr. McNab,” Maduro wrote, “all the legal bodies of Honduras … have determined that Mr. McNab has not violated any law of Honduras… . I believe the interest of justice will be best served if you assent to the request for clemency.”
No such luck. Miguel Estrada, the brilliant lawyer whose judicial nomination (by Bush) was famously filibustered by Democratic senators, represented McNab on appeal. Estrada’s administration connections did not help. “No one has done squat about it,” he told me this week, in frustration. “I never got the time of day.”
In retrospect, well-meaning prosecutors did what they always do: Take seriously their charge to enforce environmental laws. But the courts badly mishandled the case. It was a case in which the U.S. government claimed to enforce Honduran law, but where the Honduran government said the law no longer exists, and for which there was no U.S. violation unrelated to the original non-offense.
And one defendant was a Honduran who by logic (if not law) should be under the jurisdiction of his own country rather than this one, all about an “offense” that most people would find inoffensive.
President Bush ought to cut through the idiotic red tape at the Department of Justice and pardon all three defendants, immediately. For co-defendants Robert Blandford and Abner Schoenwetter, Americans who began serving their time three years later than McNab did, a pardon would give them back their freedom. For McNab, who finally is due to be released on Sept. 4, a pardon will merely clear his record.
This case has been an abominable injustice from the start.
