United States v. Tomeny

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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Nos. 97-3089 & 97-3090

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D. C. Docket No. 96-414-CR-ALL

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THEODORE S. TOMENY, JR.

and STEVE TOMENY, INC.,

Defendants-Appellants.

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Appeal from the United States District Court

for the Middle District of Florida

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(June 24, 1998)

Before CARNES, Circuit Judge, KRAVITCH, Senior Circuit Judge, and

MILLS*, Senior District Judge.

*Honorable Richard Mills, Senior U.S. District Judge for the

Central District of Illinois, sitting by designation.

KRAVITCH, Senior Circuit Judge:

Having pleaded guilty to one count each of making false

statements in violation of 18 U.S.C. § 1001, Theodore S. Tomeny

(“Tomeny”) and Steve Tomeny, Inc. (“Tomeny, Inc.”) appeal their

convictions. Their sole contention is that 16 U.S.C. § 1857(1)(I),

the criminal false statement provision of the Magnuson-Stevens

Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882

(“the Magnuson Act”), preempts 18 U.S.C. § 1001, the general

federal criminal false statement provision.1 We hold that

appellants did not waive the right to challenge their convictions,

but we reject their preemption argument and thus affirm.

I.

In December 1992, the National Marine Fisheries Service

(“NMFS”), acting pursuant to its authority under the Magnuson Act,

issued an emergency interim rule establishing vessel trip limits

for red snapper. See Reef Fish Fishery of the Gulf of Mexico, 57

Fed. Reg. 62,237 (1992) (emergency interim rule) (to be codified at

50 C.F.R. § 641.4(m)&(n)).2 The rule imposed a trip limit of 2,000

pounds for any vessel with a red snapper endorsement on its reef

fish permit and a trip limit of 200 pounds for a permitted vessel

1

Stated another way, appellants claim that 16 U.S.C. § 1857(1)(I),

as applied to the facts of this case, implicitly repealed 18 U.S.C.

§ 1001. Cf. United States v. Herring, 916 F.2d 1543, 1547 (11th

Cir. 1990) (holding that 18 U.S.C. § 1919 did not “implicitly

repeal[]” 18 U.S.C. § 1001).

2

The interim rule originally was effective from December 30, 1992,

through March 30, 1993, but was subsequently extended. See, e.g.,

Reef Fish Fishery of the Gulf of Mexico, 58 Fed. Reg. 13,560

(1993).

1

without such an endorsement. See id. An applicant could obtain an

endorsement by documenting that a particular vessel that he or she

owned or operated had landed 5000 pounds or more of red snapper in

at least two of the three years of 1990, 1991, and 1992. See id.

Since 1989, Tomeny, as president and owner of Tomeny, Inc.,

operated the F/V Southerner, a fishing vessel owned by Tomeny, Inc.

In January 1993, Tomeny submitted an application for a red snapper

endorsement for the F/V Southerner to the NMFS Regional Office in

St. Petersburg, Florida. In the application, Tomeny certified that

the vessel had met the qualifying threshold of 5000 pounds in both

1990 and 1992, even though he knew that the vessel had not met the

threshold in 1990. Although the NMFS initially informed Tomeny

that the F/V Southerner was eligible for a red snapper endorsement

for the 1993 season, the NMFS subsequently determined that Tomeny

had submitted false information to obtain the endorsement.

A grand jury indicted both Tomeny and Tomeny, Inc. on one

count each of making a false statement in violation of 18 U.S.C.

§ 1001. Appellants filed a motion to dismiss based on the theory

that, under the facts of the case, 16 U.S.C. § 1857(1)(I) preempted

18 U.S.C. § 1001. The district court denied this motion.

Appellants thereafter pleaded guilty to violating 18 U.S.C.

§ 1001, and appellants signed a written stipulation concerning the

factual basis for the guilty plea. The district court sentenced

Tomeny to six months’ home confinement and three years’ probation

and fined him $20,000. The district court fined Tomeny, Inc.

2

$12,000. This appeal followed.

II.

Appellants’ sole argument on appeal is that 16 U.S.C.

§ 1857(1)(I) preempts 18 U.S.C. § 1001. The government argues that

appellants waived this issue by entering a guilty plea not

conditioned upon the right to appeal the district court’s adverse

rulings on pre-trial motions.

Although an unconditional guilty plea does waive non-

jurisdictional defects in the proceedings against a defendant, see

United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986),

it does not waive jurisdictional defects, see United States v.

Meacham, 626 F.2d 503, 510 (5th Cir. 1980). Whether a claim is

“jurisdictional” depends on “whether the claim can be resolved by

examining the face of the indictment or the record at the time of

the plea without requiring further proceedings.” United States v.

Caperell, 938 F.2d 975, 977-78 (9th Cir. 1991). Accordingly, this

court has held that a claim that the indictment failed to charge an

offense is a jurisdictional claim not waived by the entry of a

guilty plea. See Meacham, 626 F.2d at 510.

In arguing that 16 U.S.C. § 1857(1)(I) preempts 18 U.S.C.

§ 1001 as applied to the facts of this case, appellants effectively

claim that the indictment failed to charge a legitimate offense.

We hold that this claim is jurisdictional and that appellants did

not waive it upon pleading guilty.

III.

We turn, therefore, to the merits of appellants’ contention.

3

Appellants argue that the government was required to indict them

under 16 U.S.C. § 1857(1)(I) rather than 18 U.S.C. § 1001 because

§ 1857(1)(I) preempts § 1001. Upon close examination of the

relevant statutory provisions and case-law, we reject this

contention.

16 U.S.C. § 1857 states in pertinent part:

It is unlawful –

(1) for any person

(I) to knowingly and willfully submit to a

Council, the Secretary, or the Governor

of a State false information (including

but not limited to, false information

regarding the capacity and extent to

which a United States fish processor, on

an annual basis, will process a portion

of the optimum yield of a fishery that

will be harvested by fishing vessels of

the United States) regarding any matter

that the Council, Secretary, or Governor

is considering in the course of carrying

out this chapter.

16 U.S.C. § 1857(1)(I) was enacted in 1986. See Pub. L. No. 99-

659, § 107, 100 Stat. 3706, 3713 (1986). A violation of

§ 1857(1)(I) is “punishable by a fine of not more than $100,000, or

imprisonment for not more than 6 months or both,” 16 U.S.C.

§ 1859(b), and is classified as a misdemeanor, see 18 U.S.C.

§ 3559(a) (stating that an offense is a misdemeanor, where not

otherwise specified, if the maximum authorized term of imprisonment

is six months or less).

By contrast, 18 U.S.C. § 1001 is a general felony provision

enacted more than one hundred years ago. See United States v.

Richardson, 8 F.3d 15 (9th Cir. 1993) (stating that § 1001 has been

in existence since at least 1871) (citing United States v. Bedore,

4

455 F.2d 1109, 1110-11 (9th Cir. 1972)). It states in relevant

part:

(a) . . . [W]hoever, in any matter within the

jurisdiction of the executive, legislative, or

judicial branch of the Government of the United

States, knowingly and willfully –

(1) falsifies, conceals, or covers up by any

trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or

fraudulent statement or representation; or

(3) makes or uses any false writing or document

knowing the same to contain any materially

false, fictitious, or fraudulent statement or

entry;

shall be fined under this title or imprisoned not

more than 5 years, or both.

The Supreme Court’s opinion in United States v. Batchelder,

442 U.S. 114, 99 S. Ct. 2198 (1979), guides our analysis of

appellants’ claim that 16 U.S.C. § 1857(1)(I) preempts 18 U.S.C.

§ 1001. In Batchelder, the Court held that “when an act violates

more than one criminal statute, the Government may prosecute under

either so long as it does not discriminate against any class of

defendants.” See id. at 123-24, 99 S. Ct. at 2204. Explicitly

rejecting the defendant’s argument that the more lenient statute

preempted the more severe statute, the Court stated: “[I]t is not

enough to show that the two statutes produce differing results when

applied to the same factual situation. Rather, the legislative

intent to repeal must be manifest in the positive repugnancy

between the provisions.” Id. at 122, 99 S. Ct. at 2203 (citations

and internal quotations omitted). Under Batchelder, therefore,

appellants must prove that a “positive repugnancy” exists between

the two provisions in order to show that § 1857(1)(I) preempts

5

§ 1001.

In analyzing appellants’ preemption argument, we follow the

two-step approach indicated by this court in United States v.

Anderez, 661 F.2d 404, 406-08 (5th Cir. Unit B Nov. 1981).3 First,

we must determine whether “the language of the statutes

themselves,” Anderez, 661 F.2d at 406, demonstrates Congress’s

intent that 16 U.S.C. § 1857(1)(I) preempt 18 U.S.C. § 1001. If

the statutory language does not demand a finding of preemption,

then we must determine whether the legislative history shows “clear

and manifest” evidence of Congress’s intent that § 1857(1)(I)

preempt § 1001. See United States v. Gottesman, 724 F.2d 1517,

1520 (11th Cir. 1984) (citations omitted); see also Anderez, 661

F.2d at 407.

Commencing with the statutory language, we find no indication

that Congress intended that 16 U.S.C. § 1857(1)(I) preempt 18

U.S.C. § 1001. Indeed, the Magnuson Act itself does not even

mention or implicitly refer to § 1001. Accordingly, we hold that

the statutory language does not demonstrate Congress’s intent to

preempt § 1001.4

3

A decision of a “Unit B” panel of the former Fifth Circuit is

binding on the Eleventh Circuit, even if the decision was issued

after September 30, 1981. See Matter of Int’l Horizons, Inc., 689

F.2d 996, 1004 n.17 (11th Cir. 1982).

4

Because the Magnuson Act has no general repeal provision, we need

not decide whether such a provision would have indicated Congress’s

intent that 16 U.S.C. § 1857(1)(I) preempt 18 U.S.C. § 1001. Cf.

United States v. Richardson, 8 F.3d 15, 17 (9th Cir. 1993) (holding

that 18 U.S.C. § 1920, the misdemeanor false statement provision of

the Federal Employees Compensation Act (“FECA”), preempted 18

U.S.C. § 1001 because § 41 of FCA expressly repealed all

6

We also reject appellants’ various attempts to locate in the

statutes implicit evidence of Congress’s intent that 16 U.S.C.

§ 1857(1)(I) preempt 18 U.S.C. § 1001. For example, appellants

argue that the specific nature of § 1857(1)(I) indicates Congress’s

intent to preempt the more general § 1001. Preemption of a

criminal provision, however, occurs only where Congress “clearly

intended that one statute supplant another; the fact that one

statute is more specific than the other is not sufficient.” United

States v. Hopkins, 916 F.2d 207, 218 (5th Cir. 1990).5

Accordingly, this court repeatedly has upheld convictions under 18

U.S.C. § 1001 even though the defendant’s conduct also fell within

the scope of more specific and more recently enacted false

statement provisions; in each such case, the court ruled that

Congress, in enacting the specific provision, did not manifest an

intent to preempt 18 U.S.C. § 1001. See United States v. Herring,

916 F.2d 1543, 1547 (11th Cir. 1990) (18 U.S.C. § 1919); United

States v. Fern, 696 F.2d 1269, 1274 (11th Cir. 1983) (26 U.S.C.

§ 7207); Anderez, 661 F.2d at 407 (31 U.S.C. §§ 1058, 1101); United

States v. Carter, 526 F.2d 1276, 1277-78 (5th Cir. 1976) (15 U.S.C.

§ 645(a)); United States v. Chakmakis, 449 F.2d 315, 316 (5th Cir.

inconsistent statutes).

5

See also In re Coastal Group, Inc., 13 F.3d 81, 85 (3d Cir.

1994); United States v. Parziale, 947 F.2d 123, 127 & n.10 (5th

Cir. 1991); United States v. Zabel, 702 F.2d 704, 708 (8th Cir.

1983); United States v. Mackie, 681 F.2d 1121, 1122 (9th

Cir. 1982); United States v. Brien, 617 F.2d 299, 309-11 (1st

Cir. 1980); United States v. Jones, 607 F.2d 269, 271 (9th Cir.

1979).

7

1971) (42 U.S.C. § 408(c)).6 Contrary to appellants’ assertion,

United States v. Beer, 518 F.2d 168 (5th Cir. 1975), is consistent

with these cases.7

Appellants also argue that Congress manifested its intent to

preempt 18 U.S.C. § 1001 by imposing misdemeanor penalties for

violations of 16 U.S.C. § 1857(1)(I), in contrast to the felony

penalties associated with 18 U.S.C. § 1001. As this court has

held, however, the fact that Congress has passed a specific statute

with lenient penalties does not indicate that Congress intended to

6

See also United States v. Woodward, 469 U.S. 105, 108, 105 S. Ct.

611, 612 (1985) (per curiam) (31 U.S.C. §§ 1058, 1101); United

States v. Curran, 20 F.3d 560 (3d Cir. 1994) (2 U.S.C. §§ 431-454,

455(a)); United States v. Parsons, 967 F.2d 452, 456 (10th

Cir. 1992) (26 U.S.C. § 7207); United States v. Bilzerian, 926 F.2d

1285, 1299-1300 (2d Cir. 1991) (15 U.S.C. § 78ff); United States v.

Hansen, 772 F.2d 940, 943-49 (D.C. Cir. 1985) (2 U.S.C. § 706);

United States v. Duncan, 693 F.2d 971, 975 (9th Cir. 1982) (31

U.S.C. §§ 1058, 1101); United States v. Gordon, 548 F.2d 743, 744-

45 (8th Cir. 1977) (42 U.S.C. § 1395nn); United States v. Burnett,

505 F.2d 815, 816 (9th Cir. 1974) (18 U.S.C. § 1919).

7

In Beer, the defendant was convicted of violating § 1001 for

failing to list an outstanding loan on a Federal Deposit Insurance

Corporation (“FDIC”) questionnaire. Although the court noted that

the defendant’s conduct was more specifically proscribed by 18

U.S.C. § 1005, which proscribes false statements to the FDIC, the

court explicitly refused to reverse the conviction on that ground.

The court explained:

Given the well recognized antagonism toward general,

open-ended criminal statutes, and the presence here of a

specific legislative enactment, the prosecutor might well

have proceeded under the specifically applicable statute,

18 U.S.C., § 1005. Of course, we do not reverse this

conviction for the failure to do so, but rather because

there was a failure of proof on the essential element of

materiality.

518 F.2d at 173 (emphasis added). On two occasions, this court has

noted that the Beer court did not reverse the § 1001 conviction on

preemption grounds and that Beer thus does not support a preemption

argument. See Fern, 696 F.2d at 1274; Carter, 526 F.2d at 1278.

8

preempt a more general but more severe statute that would apply to

the same offense. See Anderez, 661 F.2d at 407 (citations

omitted).

Furthermore, appellants fail to consider a crucial difference

between 16 U.S.C. § 1857(1)(I) and 18 U.S.C. § 1001. Section

1857(1)(I) does not mention materiality and thus imposes no

materiality requirement upon the government, cf. United States v.

Wells, 519 U.S. 482, __, 117 S. Ct. 921, 927 (1997) (holding that

18 U.S.C. § 1014 has no materiality requirement because the statute

does not “so much as mention[] materiality”), while § 1001 does

have an explicit materiality requirement, see United States v.

Godinez, 922 F.2d 752, 755 (11th Cir. 1991).8 Because a rational

basis thus exists for the different penalties associated with

§ 1857(1)(I) and § 1001, we find further support for our conclusion

that prosecutors may choose a felony prosecution under § 1001 even

though the offense also would fall within the misdemeanor provision

of § 1857(1)(I). See United States v. Jones, 607 F.2d 269, 274

(9th Cir. 1979) (rejecting preemption argument because the

statutory framework “in which the degree of punishment corresponds

to the presence of specific intent” was rational); see also Carter,

526 F.2d at 1277-78 (ruling that 15 U.S.C. § 645(a) did not preempt

18 U.S.C. § 1001 because “[t]he offenses defined in the statutes

are not identical, and involve different elements”).

8

A conviction under 18 U.S.C. § 1001 thus requires the government

to prove that the false statement had “the capability of affecting

or influencing the exercise of a government function.” United

States v. Herring, 916 F.2d 1543, 1547 (11th Cir. 1990)

9

We also conclude that appellants’ reliance on United States v.

LaPorta, 46 F.3d 152 (2d Cir. 1994), is misplaced. In LaPorta, the

defendants were convicted under 18 U.S.C. § 844(h)(1), which

proscribes the use of fire or explosives to commit “any felony,”

and under the predicate felony provision, 18 U.S.C. § 1361, which

proscribes the willful destruction of government property. The

court reversed the § 844(h)(1) convictions because it held that

§ 844(h)(1) was preempted by a more specific provision, 18 U.S.C.

§ 844(f), which proscribes using fire or explosives to damage

government property. The court explained:

[T]he specific statute -- § 844(f) – must logically

preempt the general one, for otherwise § 844(f) would be

rendered superfluous: § 844(h)(1), when coupled with

§ 1361 (which proscribes the willful injury of government

property), would prohibit willful destruction of

government property by fire [or explosives], covering

every circumstance that § 844(f) – malicious destruction

of government property by fire [or explosives] – covers.

Such a construction would rob § 844(f) of all practical

effect, surely not the Congressional intent.

46 F.3d at 156.

Here, unlike in LaPorta, the specific statutory provision

applies to circumstances not covered by the general provision.

First, the specific provision, 16 U.S.C. § 1857(1)(I), has no

materiality requirement, while the general provision, 18 U.S.C.

§ 1001, does have a materiality element. Second, § 1857(1)(I)

applies, inter alia, to false statements made to state governors,

while 18 U.S.C. § 1001 apparently does not.9 Because the specific

9

Section 1857(1)(I) prohibits the submission of false information

“to a Council, the Secretary, or the Governor of a State . . .

regarding any matter that the Council, Secretary, or Governor is

10

provision is not “superfluous” when considered in conjunction with

the general provision, cf. LaPorta, 46 F.3d at 156, we refuse to

hold that the specific provision preempts the general provision,

see Anderez, 661 F.2d at 407 (“Each statute is aimed at a slightly

different form of misconduct . . .[,] and Congress could easily

have determined that two provisions should operate independently to

chill certain conduct even if they overlapped in many

instances.”).10

Because the statutory language does not indicate that 16

U.S.C. § 1857(1)(I) preempts 18 U.S.C. § 1001, we must determine

whether the legislative history of § 1857(1)(I) supports

appellants’ preemption argument. Compare Anderez, 661 F.2d at 407

(finding that the legislative history did not indicate Congress’s

intent to preempt), and United States v. Jackson, 805 F.2d 457,

461-65 (2d Cir. 1986)(same), with United States v. Hernandez, 730

considering in the course of carrying out this chapter.” By

contrast, § 1001 proscribes material false statements “in any

matter within the jurisdiction of the executive, legislative, or

judicial branch of the Government of the United States.”

10

LaPorta also is distinct from the instant case in another

respect. The LaPorta court inferred that Congress, in enacting

§ 844(h)(1) and § 844(f) simultaneously, would not have intended to

allow a prosecution under the general provision, § 844(h)(1), where

prosecution under the specific provision, § 844(f), was

appropriate. Unlike the provisions at issue in LaPorta, the

statutes at issue in this case were enacted more than one hundred

years apart. See United States v. Richardson, 8 F.3d 15 (9th Cir.

1993) (stating that § 1001 has been in existence since at least

1871) (citing United States v. Bedore, 455 F.2d 1109, 1110-11 (9th

Cir. 1972)). As this court noted in Anderez, 661 F.2d at 407,

courts consistently have allowed prosecutions under 18 U.S.C.

§ 1001 even where the defendant could have been prosecuted under a

more specific and later-enacted statute with lesser penalties.

11

F.2d 895, 897-99 (2d Cir. 1984) (finding preemption based on an

examination of the legislative history),11 and Kniess v. United

States, 413 F.2d 752, 753-59 (9th Cir. 1969) (same). In the

absence of statutory language indicating preemption, this court

should conclude that § 1857(1)(I) preempts § 1001 only if supported

by “clear and manifest” evidence of Congress’s intent in the

legislative history. See United States v. Gottesman, 724 F.2d

1517, 1520 (11th Cir. 1984) (quoting United States v. Borden, 308

U.S. 188, 198-99, 60 S. Ct. 182, 188-89 (1939)(quoting Town of Red

Rock v. Henry, 106 U.S. 596, 601-02, 1 S. Ct. 434, 438-39 (1883))).

After reviewing the legislative history of 16 U.S.C.

§ 1857(1)(I), we find no evidence whatsoever of Congress’s intent

to preempt 18 U.S.C. § 1001. Congress enacted the Magnuson Act in

1976 in order to conserve and manage the fishery resources of the

United States. See 16 U.S.C. § 1801. Ten years later, Congress

enacted 16 U.S.C. § 1857(1)(I), see Pub. L. No. 99-659, § 107, 100

Stat. 3706, 3713 (1986), in order to address particular problems

that had arisen with enforcement of the Magnuson Act. The House

Committee on Merchant Marine and Fisheries explained:

It has also come to the Committee’s attention that

certain individuals may have deliberately or otherwise

misled the Councils by making false statements relating

to their intent to carry out various fishery activities.

The Committee recognizes that the fishing industry is

compelled to deal with the vicissitudes of fish stocks,

abundance, changes in consumer choice, and economic

conditions which makes for a great deal of uncertainty.

11

As stated in footnote 13, infra, this court has rejected the

specific result of Hernandez. See United States v. Moody, 977 F.2d

1420, 1424 (11th Cir. 1992).

12

There is, however, a need to protect all concerned

parties by discouraging persons from deliberately and

knowingly providing the Councils with false information.

The Committee has thus attempted to clarify these issues.

See House Comm. on Merchant Marine and Fisheries, H. Rep. No. 99-

165 (1985), reprinted in 1986 U.S.C.C.A.N. 6249, 6254-55.

This language, the only legislative history related to 16

U.S.C. § 1857(1)(I),12 simply indicates the rationale for that

provision. It in no way suggests that Congress intended to preempt

18 U.S.C. § 1001. Cf. Anderez, 661 F.2d at 407 & n.7 (holding that

legislative history of the misdemeanor provisions of the Currency

and Foreign Transactions Reporting Act, 31 U.S.C. §§ 1058, 1101,

indicated only that the provisions would be of “tremendous help”

and did not suggest Congress’s intent to preempt 18 U.S.C.

§ 1001).13

12

As the Supreme Court has held, the “authoritative source for

finding the Legislature’s intent lies in the Committee reports on

the bill” that contains the enacted statute. Garcia v. United

States, 469 U.S. 70, 76, 105 S. Ct. 479, 483 (1984).

13

We also find no support for appellants’ argument in United States

v. Hernandez, 730 F.2d 895 (2d Cir. 1984). In Hernandez, the court

reversed a defendant’s conviction for threatening a witness in

violation of the general obstruction of justice statute, 18 U.S.C.

§ 1503. See id. at 897-99. In determining that § 1503 was

preempted by 18 U.S.C. § 1512, which specifically prohibits

intimidation of witnesses, the court emphasized that Congress

deleted portions of § 1503 relating to witness harassment at the

same time that it enacted § 1512. See id. at 898-99; see also

United States v. Jackson, 805 F.2d 457, 461 (2d Cir. 1986)

(limiting Hernandez to its facts).

Hernandez provides no assistance to appellants. First, in

contrast to the situation in Hernandez, Congress did not limit the

scope of 18 U.S.C. § 1001 when it enacted 16 U.S.C. § 1857(1)(I).

Second, we note that this court has rejected summarily the result

reached by the Hernandez court. See United States v. Moody, 977

F.2d 1420, 1424 (11th Cir. 1992) (stating, without explanation,

that 18 U.S.C. § 1503 “is broad enough to cover such proscribed

13

Having determined that appellants’ preemption argument is not

supported by either the statutory language or the legislative

history, we turn to appellants’ two remaining arguments. First,

appellants contend that the Lacey Act, 16 U.S.C. §§ 3371-3378,

indicates Congress’s intent “to limit sanctions for matters under

the Magnuson Act to [the Magnuson] Act’s own provisions.”14 This

claim is specious. The Lacey Act makes it a felony for any person

to transport, possess, sell, or purchase any wildlife taken in

violation of any federal law or regulation, see 16 U.S.C.

§ 3372(a)(1); 16 U.S.C. § 3373(d)(1), but it specifically excepts

from this proscription “any activity regulated by a fishery

management plan in effect under the Magnuson[] Act,” see 16 U.S.C.

§ 3377(a). Because § 3377(a) renders legal under the Lacey Act all

fishing practices explicitly allowed by the Magnuson Act, the

Magnuson Act effectively preempts the Lacey Act to that extent.

Contrary to appellants’ assertion, nothing in the Lacey Act

suggests that the Magnuson Act preempts 18 U.S.C. § 1001.

Second, we decline appellants’ invitation to invoke the rule

of lenity. That rule is inapplicable where, as here, a defendant

was convicted under a statute that plainly proscribed his conduct

and the defendant only argues that he should have been prosecuted

under another, more specific statutory provision. See United

States v. Jackson, 805 F.2d 457, 465 (2d Cir. 1986); United States

acts against witnesses”).

14

Appellants’ Br. at 26.

14

v. Hansen, 772 F.2d 940, 948-49 (D.C. Cir. 1985) (Scalia, J.); cf.

Muscarello v. United States, 66 U.S.L.W. 4459, __ (U.S. June 8,

1998) (Nos. 96-1654 & 96-8837) (stating that the rule of lenity

applies only where the criminal statute at issue contains a

“grievous ambiguity or uncertainty”) (internal quotations and

citations omitted); Albernaz v. United States, 450 U.S. 333, 343,

101 S. Ct. 1137, 1144 (1981) (holding that the rule of lenity is

inapplicable where the “statutory provisions . . . are unambiguous

on their face and [the] legislative history . . . gives us no

reason to pause over the manner in which these provisions should be

interpreted”); United States v. Zabel, 702 F.2d 704, 708 (8th Cir.

1983) (stating that the rule of lenity has no application to

defendant’s preemption claim where “the elements required to prove

the respective statutes differ so unambiguously”).

IV.

Accordingly, we hold that 16 U.S.C. § 1857(1)(I), the Magnuson

Act’s criminal false statement provision, does not preempt 18

U.S.C. § 1001, the general federal criminal false statement

provision. Appellants’ convictions therefore are AFFIRMED.

15