Criminal Practice – Venue – D.C. Seafood Wholesaler – Untagged & Oversized Striped Bass – False Statements – Maryland Federal Court

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U.S. v. Oceanpro Industries Ltd. (Lawyers Weekly No. 001-084-12, 15 pp.) (Niemeyer, J.) No. 10-5239, March 23, 2012; USDC at Greenbelt, Md. (Messitte, J.) 4^th Cir.  Click here for the full-text opinion.

Holding: The government could prosecute a District of Columbia seafood wholesaler and two of its employees in Maryland federal court on charges of buying untagged and oversized striped bass, and the employees for giving a false statement to federal law enforcement officers, and the 4^th Circuit affirms defendants’ convictions and the restitution order of $300,000 to Virginia and Maryland.

We conclude that venue for the false statement charge was proper in the District of Maryland and Maryland and Virginia’s interest in striped bass, or rockfish, was sufficient to make the states “victims” for an award of restitution.

Rockfish is a highly prized fish for both eating and sport fishing. It is regulated in the main stem of the Potomac River by the Potomac River Fish Commission, with commissioners from both Virginia and Maryland, and in other waters of Virginia and Maryland by each state, respectively. To protect spawning fish, Maryland prohibited the harvesting of striped bass between March 25 and June 1, and Virginia restricted harvesting during the same period to fish between 18 and 28 inches in size. Both states also impose annual catch quotas, which were enforced by the requirement to tag all fish.

All defendants — the wholesaler, an officer and fish buyer and a second fish buyer — were convicted for violating the Lacey Act, 16 U.S.C. § 3372(a)(2)(A). The wholesaler and the second fish buyer also were convicted for the false statement charge under 18 U.S.C. § 1001. The district court sentenced the wholesaler to a fine of $575,000 and the officer/buyer to 21 months imprisonment and a $60,000 fine, the second fish buyer to 15 months imprisonment and a $7,500 fine. The court ordered all three defendants, jointly and severally, to pay $300,000 in restitution to Maryland and Virginia, to be divided equally between the states.

The wholesaler and the second buyer contend that because the buyer’s statement denying purchase of rockfish was made in the wholesaler’s offices in D.C., the crime was committed entirely in D.C. and venue in Maryland was inappropriate.

Just as Congress defined the effects of conduct in other statutes, it defined the effects in § 1001 to include the element of materiality. In this case, proving materiality necessarily requires evidence of the existence of the federal investigation in Maryland and the potential effects of the second buyer’s statement on that investigation. We conclude the District of Maryland had a substantial connection to that defendant’s conduct and to the charges based on that conduct against him and the wholesaler. We hold venue for the § 1001 charge was proper in the District of Maryland.

The restitution is compensation for the rockfish that had been illegally harvested from Maryland and Virginia waters and sold to the wholesaler during the conspiracy. This amount was below the stipulated market value of the fish illegally caught and sold – $854,812 with respect to the wholesaler and the first buyer, and $629,445 with respect to the second buyer. Defendants contend the district court lacked authority to order restitution because there was no “victim” in this case under the Mandatory Victims’ Restitution Act of 1996, 18 U.S.C. § 3663A. They argue the states’ interest in the fish was regulatory rather than proprietary, and the MVRA requires restitution for convictions on offenses against a victim’s property.

The government argues the states were victims under the Victim Witness Protection Act, 18 U.S.C. § 3663(a)(2).

We hold the restitution award in this case was proper under any of the restitution provisions advanced – the MVRA, the VWPA and as a condition of probation and supervised release – because, under the applicable statutory provisions, the district court was authorized to require the defendants to make restitution to “victims.” To qualify as victims, Maryland and Virginia need not even have been “owners” of the striped bass, although they were after the fish were illegally caught; they merely had to have interests that were “harmed” as a result of defendants’ criminal conduct. Because we have concluded their interests were indeed harmed, the states were victims and therefore properly awarded restitution.