UPDATE 9/08 Bob Blandford's 2255 Successive Application Denied

Our Forefathers would be turning over in their graves if they witnessed the injustices happening at the State and Federal levels in America today.

Here is an excerpt from Dianne Blandford's letter to FFF.

"Bob (Blanford) spent 5 months working the petition in the law library. The Judges only read his 2255 successive application form (Which he had to fill out first)1-7 pages to explain briefly your case. Based on the application form they denied it." "The Judges never looked at his real petition which consisted of 1-56 pages, nor all his exhibits/transcripts which he included as evidence etc. to back up what he was stating that he mailed out to the 11 circuit court."

Again, very discouraging and disappointing .

Dianne

No matter the odds... Our prayers are continually for justice to prevail and for Bob to be released. The FFF Family.

A smiling Bob Blandford... Unaware that his world would be soon turned upside down due to the refusal of the courts to allow exculpatory testimony from a Honduran official.

UPDATE 8/12: WLF PETITIONS DOJ TO REVISE ENVIRONMENT PROSECUTION POLICY

Excerpts from the Washington Legal Foundation Press Release.

The Washington Legal Foundation (WLF) filed a petition yesterday calling upon the Department of Justice (DOJ) to revise its policy for prosecuting violations of environmental laws and regulations. The 23-page filing, addressed to Attorney General Alberto Gonzales, requests that DOJ and U.S. Attorneys establish effective procedures to screen referrals from EPA and other agencies to curtail prosecutorial abuses. WLF's petition was filed as part of its CRIMINALIZATION OF FREE ENTERPRISE-BUSINESS CIVIL LIBERTIES PROGRAM. This program is designed to combat abusive prosecutorial practices where criminal charges are levied against businesses, owners, and plant managers for minor or bogus environmental regulatory infractions when non-criminal and less costly alternatives, such as administrative and civil remedies, are readily available and more protective of the Environment.

WLF recounted examples over recent years of abusive criminal enforcement cases, including a WLF-supported case in which federal prosecutors brought criminal charges against three seafood dealers, Robert Blandford, Abner Schoenwetter, and David Henson McNab, for the "crime" of importing frozen seafood from Honduras in the wrong containers. An obscure Honduran regulation required that the frozen seafood be shipped in cardboard boxes instead of the see-through plastic bags that were used. Even though the shipments were cleared by Customs and the Food and Drug Administration, prosecutors also charged the businessmen with "smuggling" the seafood. And because the businessmen paid for the seafood through their normal operations, they were also charged with money laundering. The three defendants are each currently serving a Draconian eight-year prison term for their so-called crimes, even though civil remedies were available to handle this minor regulatory infraction.

"The Justice Department needs to stop criminalizing business activities that are subject to complex and confusing regulations," said Paul Kamenar, WLF's Senior Executive Counsel. "There are less costly and more effective non-criminal remedies to handle environmental infractions," Kamenar added.

An honest businessman and his associates face 8 years in prison for importing Lobsters in plastic bags instead of cardboard boxes.

Please Click the Link Below to Sign this Petition.

Click HERE to Sign The Petition Requesting President Bush to Intervene.

To: President of United States, U.S. Congress, US Department of Justice
Robert D. Blandford,
et al.,
Abner Schoenwetter, and Diane Huang
- Case - No. 03-627 -

- A HONDURAS LOBSTER TAIL CASE -



Dear Supporter;
We would like you to join in our fight against draconian sentences of eight years - one month and to help undo the severity of the sentence we received for importing Honduras Lobster Tails, a non-endangered species, packed in clear plastic bags as opposed to cardboard.

A horrible miscarriage of justice in a case involving four individuals whose sole business was Fishing, Importing, Processing, and Selling of Lobster Tails (not listed on the government's endangered species list) from Honduras. Sales were made to several companies among them Red Lobster Restaurants. The period of the alleged "crime" was from 1995 through to early January 1999. The trial eventually produced sentences for three of the defendants to eight years - one month, and two years to one other defendant. Involved are three Americans along with one Honduran National, David Henson McNab, who has been incarcerated for more than two and one-half years. Sentence levels were attained by trumping up the charges to criminal and adding; Money-Laundering, Smuggling, Conspiracy, and Obstruction of Justice for four defendants who had no Criminal background whatsoever. The government was able to elevate the charges because of the way in which the Lobster Tails were packed when imported, (clear-plastic bags as opposed to cardboard boxes). All of these charges were applied in spite of the fact that every shipment cleared FDA and U.S. Customs.

The victims were charged with violating a Honduran resolution that both the Honduran Lower Court and later their Supreme Court agreed never existed. They both stated that Resolution # 030-95 NEVER had the form of law, and was declared of nullity. The Justice Department and National Marine Fisheries Services (NMFS) investigated for violations of Honduran Law in order to apply Lacey Act charges against defendants. In other words, defendants business of importing Lobster Tails never violated United States Law. The government's continued pursuit of this vexatious and over-zealous prosecution has had a "chilling" effect, and has left a shameful "stain" on America's Judicial System. Even a letter from Dr. Leiva, the Attorney General of Honduras to John Ashcroft saying that Honduran Laws were NOT violated, drifted on deaf ears at the U.S. Justice Department.

The support the defendants have had in this case reads like a who's who among the legal profession in America. They all agree that the government in their desire to win has created a grave injustice against ordinary people that had NO Criminal intent, and no reason to know about some supposed and obscure law of Honduras (mens rea). The case started in the Federal District Court of the Southern District of Alabama all the way through the Eleventh Circuit Court of Appeals (2 to 1 vote against), finally reaching the U.S. Supreme Court where cert was denied on February 23, 2004.

We start with the Honduras government and their Embassy in Washington who began support in the Eleventh Circuit and again in the Supreme Court with Seth Waxman. Miguel Estrada represented one of the codefendants, while the Washington Legal Foundation and the firm of Kirkpatrick and Lockhart represented three other defendants. The defendants had amicus support from National Association of Criminal Defense Lawyers (NACDL), Heritage Foundation, National Association of Manufacturers (NAM), The National Federation of Independant Business (NFIDB), and the National Wilderness Institute (NWI). In addition, there was plenty of media articulating the unnecessary judicial burden placed on ordinary American citizens when, if anything, this case could have been resolved with civil fines; names like Paul Rosenzweig, Ellen S. Podgor, Dr Paul Craig Roberts, Tony Mauro, Howard Bashman and other brilliant legal minds

The majority at the Eleventh Circuit Court of Appeals affirmed the conviction based on their speculation that the Honduran government "shifted" its position after trial inferring that the Honduras government had somehow been influenced.

The majority had no evidence whatsoever of this so-called "shift" and the only government witness recanted her testimony post trial. Judge Peter Fay (appointed by Nixon in 1976) provided a twelve page compelling dissent in which he gave credence to the Honduran government's position taken in their amicus brief, where they declared that NO LAWS had been violated. Since when do judges make the law rather than simply interpret them?

Ladies and Gentlemen, good Americans cannot allow these injustices to remain unexamined or uncorrected. We Americans cannot allow our Justice System to lie in disgrace instead of what it stands for; liberty and justice for all. We Americans cannot allow our Judicial System to simply disregard a foreign nations right to sovereignty and their ability to interpret their own laws. After the Eleventh Circuit Court of Appeals failed to give Judicial deference to Honduras, the United States Supreme Court denied certiorari. This decision, however, would seem to go against several of the Justices positions in their recent public speeches;


Justice Sandra Day O’Conner:
"She has been heard at several functions and in several interviews expounding on how the U.S. Supreme Court should be considering foreign precedent more often in it’s decisions". Justice O’Conner, Ignoring American Law?
Warner Todd Huston, 11/06/03, of The American Daily

Justice Ruth Bader Ginsburg:
“Our island or lone ranger mentality is beginning to change,” said Justice Ginsburg. Judges “are becoming more open to comparative and international law perspectives.” The implication of this is that judges, should they not like the body of American law and opinion, should feel free to see what other countries do and think. “Your perspective on constitutional law should encompass the world,” she told assembled convention. “We are the losers if we do not both share our experiences with and learn from others.”

Justice Anthony Kennedy:
"I do think federal judges who depart downward are courageous," Kennedy told the House Appropriations Committee during a hearing on the court's budget. Judges should not have to "follow, blindly, these unjust guidelines," he said...... Gina Holland

Associated Press - Mar. 18, 2004



President Bush has always maintained that the support of small business is vital to the economy and represents the backbone of America.

The public has been outraged with white-collar crime involving huge sums of money maliciously ravaged by a few of the upper echelon of corporations in America. These crimes serving to line the pockets of a chosen few, do so much damage to many, stealing employees of their retirement and shareholders of their investment. These four defendants, one currently incarcerated, three awaiting instructions to report to Prision are nothing more than hard-working people whose lives along with their family, friends, and associates have been destroyed emotionally and financially for no reason whatsoever. It is criminal that we in America stand-by tolerating, while witnessing the destruction of the lives of families. This injustice has no place in America. In today's real world we have enough to do to stand out of harms way and to protect America and preserve its morals. This is simply not a path to that end. America is and has always been guided by very patriotic and great leaders; but what would our forefathers say about this kind of injustice?

Thank you for listening, thank you for acting, thank you for your signature and support.

Respectfully yours,

The Defendants,

Blandford, Schoenwetter, and Huang


Sincerely,

The Undersigned

NMFS agents "They came to my house with 13 officers wearing bulletproof vests. The FBI, special agents, fish and wildlife? The whole group of them came in here with a battering ram and guns drawn," says Bob Blandford, in an interview with MyBusiness days before he was incarcerated. "This indictment has devastated our family."

We are currently researching the following case. From all initial appearances, a 60 year old man with diabetes and heart problems may be unjustly rotting in prison. He's already served 3 years with 5 to go.

Be Sure To Read The Article From The Heritage Foundation After The Letter.

The following is a letter that FFF received on February 28th, 2007 from the imprisoned man's wife.

Dear Dave Grix, I received your e-mail and read some abuse stories on your web site what the FWC has done. This is what National Marine Fishery Services has done to us. I am not sure if you can help.

Case United States vs Blandford/McNab et al

My husband Robert Blandford received a harsh eight year jail sentence
He has been in prison for almost three years, inmate #55321-004 at the Federal Detention Center in Miami for conducting a seafood business out of his home importing lobster tails from Honduras (Violation of the Lacey Act.)

This lobster case did not start with an anonymous fax as stated by the prosecution and National Marine Fisheries Services, NMFS were aware and were expecting the fax 8 days prior before they even received it. Jan 25, 1999 to be exact. (The anonymous fax was faxed to NMFS Feb. 5, 1999)Yet NMFS testified to the jury ( in the trial transcript) they were only aware of the shipment because of the anonymous fax. (Its in the transcripts) In my opinion they fabricated their own fax, The prosecution/NMFS mislead the District Court, appellate 11 circuit court and the United StatesSupreme Court by stating this whole case started with an anonymous fax.

Out of a 70,000 lbs shipment approx. 2.5% were undersized lobsters ( No prior record first time offense (Non - Violent Crime).

Every lobster shipment that came into the United States (during the five years of my husband doing business cleared U.S. Customs and United States Food and Drug Administration . ( Bill of Lading, Country of Origin, Pro forma Invoice) I hardly see how that is smuggling? Or concealment) My husband sold his lobster tails to Red Lobster Restaurant.

The over zealous prosecution enhanced money laundering charges which was based on a Honduras packaging Law) the lobsters came in clear frozen plastic bags vs a box. So therefore based on a packaging law all the business my husband did in Honduras was "illegal" bags vs boxes. And this raised the monetary level to 4 million dollars in SALES during the five years of doing business NOT PROFITS.

National Marine Fisheries Services ,on their very own NMFS web site its a (Public Record) dated back to 1997 thur to 2001 listed Honduran Lobster tails for all seafood sellers and buyers alike with pricing , that 2 0z 3oz and 4 oz tails were legal. But in the trial did not present their own prices sheets , and only showed Urner Barry Price Sheet which listed Honduras Lobster tails 5 oz and over. How can the prosecution and NMFS turn around and justify a eight year sentence.

The Judge did not allow into evidence, that the Urner Barry Price Sheets, listed American Lobsters 2 and 3 oz tails as legal at the time , nor did he allow that Brazil, and Belize listed 3 and 4 oz tails as legal . To this day Urner Barry Price sheets show Brazil 3 and 4 0z tails as perfectly legal.

The Attorney General of Honduras wrote to Former John Ashcroft NO LAWS were violated.

My husband respects the law and the environment he had his CITES for en-dangered species since 1995, complied with HACCP program since 1995, we were not even aware or ever heard of the Lacey act till all this came to be.

Judge Vollmer relied on testimony from Ms Paz who was nothing more than a record custodian. (Its in the trial transcripts)The prosecution referred to her as The Secretary General of DJPESCA.

This case in my opinion should have been nothing more than a minor infraction/fine. Not 97 months plus one month in prison in addition and three years supervised release .Almost three years in prison surely should be sufficient to justify this crime and satisfy the sentencing guidelines. In addition he paid a $15,000 fine and $100,000.00 forfeiture.

He see's inmates that are in prison for drugs that get a lesser sentence than he did, leave the prison.

We were supported by Washington Legal Foundation (Paul Kamenar who wrote our Pro Bono Cert to the Supreme Court, and Amicus Brief by Heritage Foundation, NAM and National Federation of Independence Business In spite of all our supportOur Cert was denied Feb. 2004. Gene Healy (Cato Institute )article "Begging His Pardon"

Our Habeas Corpus 2255 was denied by Judge Butler, Southern District Court Alabama

We filed a COA Request (11 circuit court)and were denied, and denied a Petition for Rehearing in July 2006

We have now filed once again to the Supreme Court Docket 06-7208. Our Cert was denied Dec 4, 2006.

Judge Vollmer stated in the trial transcripts in regards to Money Laundering. Judge Vollmer was in disagreement of the money laundering charges, didn't understand it and stated that he thought it was prejudicial. He was also in disagreement with the sentencing guidelines. He also stated he did not recall any evidence against Robert Blandford in regards to money laundering. Judge Vollmer stated that he was familiar with money laundering in drug cases, but in our case quote" Here we see where the money goes and where it comes from. "We see a connection between the two. Judge Vollmer stated he hardly could see how that is considered money laundering.

Not everyone in prison deserves to be in prison, and certainly almost three years incarcerated should justify the crime. I hardly feel if set free he would be a threat to society. He is 60 years old has diabetes, heart problems. There are more inmates in prison in the United States than any where in the world.

My husband is rehabilitated, he does not need to be in prison for rehabilitated.

I thank you for taking the time to read this. There is so much more to this case but it would be too lengthy to go into.

It is not fair how the National Marine Fishery Service/ prosecution can do whatever they want, and because they work for the Justice Department are able to be able to get a conviction misleading the jury.

Sincerely
DIANNE BLANDFORD

McNab v United States A lobster Tale :Invalid Foreign Laws leads to years in Prison by Paul Rosensweizer Heritage Foundation

The Supreme Court is currently considering whether to take the case of four businesspeople sent to prison for importing lobster tails from Honduras. Their convictions are predicated on supposed violations of the Lacey Act, which makes it a crime to import “fish or wildlife taken … in violation of any foreign law.” Here, the foreign laws are Honduran fishing regulations that have been declared null and void in Honduras, but are somehow still being enforced by American federal courts.

It all began with a supposed anonymous fax to the National Marine Fishery Service (NMFS) on February 3, 1999. The mystery fax alleged that Honduran businessman David McNab had a shipment of “undersized (3 & 4oz) lobster tails” scheduled to arrive in Bayou La Batre, Alabama on February 5, 1999. The fax also said that the lobster should be packed in cardboard boxes, but was in fact packed in clear plastic bags.

Based on this strange, anonymous message, NMFS agents waited for McNab’s ship and captured it on arrival. With no explanation, the federal government held the entire ship for several weeks and then off-loaded and transported McNab’s 70,000 pounds of Caribbean spiny lobster to a government freezer in Florida. There the lobster tails languished for six months while NMFS agents searched Honduran regulations for some reason to keep the lobster meat and prosecute the importers and distributors.

After numerous phone calls, letters, and trips to Honduras, the NMFS focused on three provisions. The first details the processing and packaging of fish harvested in Honduran waters. This 1993 regulation, promulgated pursuant to a 1973 statute, included the mention of packaging in cardboard boxes. The second regulation prohibits harvesting any lobsters with tails shorter than 5.5 inches. This must have surprised the NMFS agents, since the market price lists published by NMFS include prices for two and three ounce Caribbean spiny lobsters from Honduras. A government expert acknowledged at trial that these little lobsters would all have tails shorter than 5.5 inches. The third Honduran provision prohibits destroying or harvesting “eggs, or the offspring of fish, chelonians or other aquatic species for profit.”

Six months after sending them to the cooler, NMFS agents finally began to inspect the locked-up lobster tails. Only about three percent of the lobster tails turned out to be less than 5.5 inches long. Just seven percent showed any evidence of having been egg-bearing lobsters. These small amounts belie the suggestion that McNab or his employees were intentionally harvesting young or egg-bearing lobsters. Nevertheless, prosecutors included these regulations as predicates for alleged violations of the Lacey Act.

Charges based on the size and egg-harvesting regulations would only allow NMFS to seize the small portions of lobster tails that were under 5.5 inches or showed evidence of bearing eggs. This, apparently, was not enough. Because all the lobsters were in clear plastic bags instead of cardboard boxes, the government declared the entire shipment illegal and formally seized all 70,000 pounds of lobster tails.

Government prosecutors, not satisfied even with 35 tons of lobster, filed criminal charges against McNab. The also charged three American businesspeople who frequently purchased and distributed lobster tails from McNab. All charges against McNab and most charges against the others were predicated on the three Honduran regulations, applied through the Lacey Act. No charges were ever brought against the defendants in Honduras. The alleged Lacey Act violations served primarily to trigger more serious charges. If importing the lobster in bags instead of boxes was illegal, prosecutors reasoned, then planning to import it was criminal conspiracy, the actual importation was smuggling, and payments became felony money laundering.

At the District Court’s foreign law hearing, McNab presented copious evidence showing that the Honduran regulations at issue were invalid. The size restriction had never been signed by the President of Honduras, an absolute requirement for such a regulation under Honduran law. The Attorney General of Honduras supplied an opinion, confirming other testimony, that because the size restriction was not signed it could never have had the force of law.

McNab presented other witnesses, including a former Honduran Minister of Justice, who testified that the egg harvesting regulation was never intended to apply to animals that happened to bear eggs when caught. The prohibition against harvesting or destroying eggs for profit was meant to do just that, to prevent the harvesting of eggs themselves (turtle eggs in particular).

Government prosecutors somehow convinced the court to ignore McNab’s extensive evidence and instead accept the testimony of a single, mid-level Honduran bureaucrat, Liliana Paz. For reasons that remain unexplained, the “Secretary-General” of the Honduran Ministry of Agriculture and Livestock – an official whose primary duty is to be “an instrument of communication” and who has no expertise or authority to render legal opinions – boldly testified that all the regulations were valid and had the force of law.

Despite the obvious lack of criminal intent on the part of the defendants, as well as concerns about the validity of the Honduran regulations, all four businesspeople were convicted on a general verdict. In August 2001, McNab and two businessmen were each sentenced to eight years in prison. The fourth defendant, a businesswoman from New Jersey who resold seafood to restaurants like Red Lobster, was sentenced to two years in prison.

The government trumpeted the convictions in press releases that labeled McNab “the ringleader of a smuggling operation.” The reports mislead the public by suggesting that McNab was intentionally harvesting undersized and egg-bearing lobsters, never mentioning that these were a tiny portion of his catch. The government fails to note that the only reason for declaring the entire shipment illegal was that it was packed in bags, not boxes. In effect, the defendants were convicted of smuggling because they packed lobster in clear plastic bags instead of opaque cardboard boxes.

A press release issued by the National Oceanic and Atmospheric Administration (NOAA), the agency that includes the NMFS, implies that McNab’s business success was part of his wrongdoing. NOAA points out that McNab owns a “fleet of vessels, each of which can deploy thousands of lobster traps,” as if this, in itself, is somehow a wrongful act. Striking an even more bizarre note, NOAA declares that “[t]he wealth from McNab’s vast harvest was denied to the common citizens of Honduras.” McNab, a Honduran citizen, is apparently not “common” enough for the Sandinistas at NOAA.

After sentencing, the court was prepared to allow all four defendants to remain free pending their appeals. Federal prosecutors objected to allowing a foreigner like McNab to remain free on bond and the 11th Circuit Court of Appeals sent him to prison. McNab is now in his fourth year of incarceration.

On Appeal before the 11th Circuit, two of the three appellate judges effectively declared Honduras a banana republic, unfit to construe its own laws. The Court decided that it would be unwise to disagree with the prosecutors’ interpretation of the foreign law, citing the “political question” doctrine. This ignored the holdings of other Circuits and the proper role of appellate courts in general. Even worse, the two judges asserted that Honduran officials could not be trusted because they might be bribed or manipulated. Somehow this failed to undermine the credibility of Ms. Paz, the mid-level Honduran bureaucrat who testified for the prosecution. In the interests of “finality,” the Circuit Court upheld the lower court on every issue, no doubt because if just one of the three Honduran regulations was found to be invalid, all of the convictions would fail.

The decision of the 11th Circuit is only more troubling when considered in light of the critical new evidence that emerged from Honduras during and after the trial. After the foreign law hearing, McNab had filed an action in the Honduran Court of First Instance of Administrative Law challenging the size restriction. Several months after the end of the criminal trial, the Honduran Court formally held that the size limit was void and declared that it had never had the force of law.

McNab’s attorneys also discovered that the law authorizing the packaging regulations was repealed in 1995. Under Honduran law, a regulation is automatically repealed when the authorizing statute is repealed. Even the prosecution’s witness from the Honduran Ministry of Agriculture and Livestock admitted this in an affidavit. It also became clear that the egg-harvesting provision had been repealed in a way that, under Honduran law, operated retroactively.

McNab additionally filed a motion before the Honduran National Human Rights Commissioner challenging Ms. Paz’s testimony about Honduran law. The National Human Rights Commissioner, Dr. Leo Valladares, is an internationally respected constitutional lawyer and human rights advocate. His office in Honduras is charged with addressing complaints that government officials’ actions constitute “legal error.” Dr. Valladares issued a report, which the Minister of Agriculture signed, stating that Ms. Paz’s testimony constituted “an error of law.” The scholarly report found that the packaging regulation was repealed in 1995, the size restriction had “never had the force of law,” and that the egg-bearing provision had been retroactively repealed.

The government of Honduras, through its embassy, directed all of this information to the U.S. State Department, asking that they forward it directly to the Department of Justice. The Attorney General of Honduras also filed an amicus curiae brief with the 11th Circuit, providing this information and explaining that McNab and the other businesspeople had not violated any Honduran law. All of this was ignored by the Court of Appeals when they concluded that “finality” was, apparently, more important than justice.

The prosecution of four businesspeople for normal business activities highlights the dangerous but growing trend to expand criminal liability against normal social and economic conduct. Historically, a criminal conviction required proof of criminal intent (mens rea; a guilty mind) in addition to the wrongful infliction of harm (actus reus; a bad act). Even if the Honduran statutes had not turned out to be uniformly invalid, there was never any evidence that showed the businesspeople acted with criminal intent. Rather the evidence seems to prove that they were simply engaged in catching and selling seafood in a way that any businessperson would consider lawful.

This prosecution also reveals the risks of federalizing criminal law. Observers have long warned against allowing the federal government to encroach on the traditional state function of enacting and enforcing general criminal laws. Here, the federal government, through the Lacey Act, claims to enforce foreign laws against foreign and U.S. citizens. These regulations were not made by the U.S. Congress or by some executive agency, but by a foreign government with unfamiliar procedures. If the government of Honduras had actually believed these regulations to be valid, they were free to bring charges. Instead, the U.S. government prosecuted a case on what turned out to be bad law.

Each of the four defendants was trying only to earn a living through normal commercial activity when an anonymous accusatory fax sent the U.S. government to destroy their lives. David McNab waits in prison to see if his appeal to the court of last resort will even take the case. Three other businesspeople wait anxiously for the decision that could save them or send them to prison for years.

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We are researching ways to help this man. In addition, a petition drive may be coming soon. Please say tuned.