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"How Appealing"

Monday, February 16, 2004

When it comes to spiny lobsters, if you don't do the crime,
you might still have to do the time:
A case of "lobster fraud" might be seen as a laughing matter

America's Funiest Supreme Court Decision

if it weren't for the fact that someone is currently serving eight years in federal prison for committing a federal crime that depends on understanding the laws of Honduras in a manner directly contrary to the way in which the Republic of Honduras says those laws must be understood. As a result, many will be looking on with interest in the very near future to learn whether the U.S. Supreme Court agrees to review the case known as McNab v. United States and the companion case of Blandford v. United States, which are scheduled to be discussed at the Justices' private conference this Friday.

Understandably, this case has already garnered some attention from the mainstream media. The Chicago Tribune, one week ago Sunday, published an article by Jan Crawford Greenburg headlined "Fisherman's case casts a wide net; International spat reaches top court." (Greenburg's article can also be accessed here, without any need for pre-registration.) The Associated Press recently published an article headlined "Honduras asks U.S. Supreme Court to overturn conviction." And a related op-ed entitled "Overzealous Prosecution: Eight years for bagging lobsters?" has recently appeared in several newspapers throughout the Nation.

The federal government apparently thought that this case was newsworthy from the outset, because it issued press releases announcing the indictment and convictions after trial in Mobile, Alabama. A divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the convictions in March 2003 (original opinion here; order amending here).

Fortunately for McNab and the others, the lawyers working to overturn the Eleventh Circuit's ruling do not lack for talent. Miguel A. Estrada is serving as counsel of record for McNab, and the cert. petition he filed can be accessed here.

The petition, press release, briefs filed by WASHINGTON LEGAL FOUNDATION (WLF), Washington, DC on behalf of Blandford and the others can be seen at; http://www.wlf.org/Litigating/casedetail.asp?detail=260. The federal government's not very persuasive brief in opposition to these petitions for writ of certiorari can be accessed here. McNab's reply brief for petitioner can be accessed here. And the especially significant amicus brief filed by former Solicitor General Seth P. Waxman on behalf of the Republic of Honduras can be accessed here. That amicus brief explains in no uncertain terms that McNab did not violate the laws of Honduras.

What makes this case worthy of U.S. Supreme Court review? The manner in which federal courts go about determining the meaning of foreign laws is a recurring question of great significance, and the briefs demonstrate that the federal appellate courts are divided over the proper approach. As a result of that division, McNab and others sit in federal prison convicted of committing crimes under Honduran law that the Republic of Honduras says do not exist. It's difficult to imagine a case that could better present this question for the Court's resolution, or lawyers more talented than the ones who would continue to be involved if cert. is granted. I'll keep you posted should this case receive additional press coverage in the days ahead, and the U.S. Supreme Court could announce as early as Monday, February 23, 2004 -- one week from today -- whether it is granting review on the merits in this matter.

posted at 11:00 by Howard Bashman

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