On November 20, 2013, several Maryland fishermen and one company were indicted by a federal grand jury in Baltimore for illegally harvesting and selling striped bass. While environmental crimes are not always at the forefront of federal criminal activity, the twenty-six (26) count indictment in this case appears to be the result of an intense and lengthy joint investigation by the Maryland Department of Natural Resources and the U.S. Fish and Wildlife Service. The prosecution will also be a joint effort between the United States Attorney’s Office for the District of Maryland and the Environmental Crimes Section of the United States Department of Justice.

Michael D. Hayden, Jr., his company, William J. Lednum, Kent Sadler and Lawrence “Daniel” Murphy are all facing charges of violating the Lacey Act. Specifically, they have been accused of falsely labeling and trafficking stripped bass to purchasers in surrounding states. The owner of the company, Michael D. Hayden, Jr., is also facing several counts of witness retaliation and tampering. Allegedly, during the course of the investigation, Hayden made threatening phone calls to potential witnesses in an effort to thwart their statements to federal agents.

The Lacey Act, 16 U.S.C. §§ 3371 et. seq., is intended to protect and conserve fish and wildlife. In this case, the indictment alleges that the fisherman violated the Atlantic Stripped Bass Conservation Act, as well as conservation laws imposed by the State of Maryland, and in doing so were allegedly dealing in fish that were caught illegally, thus implicating the Lacey Act.

The entire Atlantic seaboard has established the Atlantic States Marine Fisheries Commission (ASMFC) to monitor and regulate coastal regions and fisheries shared between the coastal states. Further, each state has their own set of comprehensive fishing regulations that fishermen must abide by. The State of Maryland fishing regulations can be found in the Maryland Code of Regulations, COMAR §§ 8.02.15.01 et. seq.

The Atlantic fishing industry is highly regulated and subject to numerous provisions, both federally and locally. In addition to obtaining the required fishing licenses, fishermen must adhere to very specific regulations as to lawful means of catching fish, providing daily catch records which state the number and weight of fish caught, and only fishing during allocated times of the year, just to name a few. The plethora of regulations could easily cause a person to overlook or misunderstand the lawful procedures and requirements of the fishing industry.

To that end, it’s feasible to argue that the individuals did not knowingly violate the law, or enter a conspiracy to do so. To prove the element of intent required by the Lacey Act, the government must prove beyond a reasonable doubt that the defendants knew, or should have known, they were violating the law. This leaves open the opportunity for the defendants to argue that they did not know they were violating the fishing regulations, but also that there was no way for them to know of such regulations. Another potential argument in their defense can address the different application between civil and criminal violations of the Lacey Act, and why defendants’ conduct is more akin to a civil penalty. While such an argument may not totally absolve them of liability, it may prove to be a strong mitigating factor.

The author of this blog is Margaret S. Ververis, an attorney specializing in Federal Criminal Defense matters with the law firm of Ferrari & Associates, P.C. If you have any questions please contact her at 202-440-2581 or ververis@ferrariassociatespc.com.

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