PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
-----------------------
Nos. 97-3089 & 97-3090
-----------------------
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.
------------------------
Appeal from the United States District Court
for the Middle District of Florida
-------------------------
(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as applied to the facts of this case, implicitly repealed 18 U.S.C.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