Illegal Lobster Importers Not Required to Pay Restitution

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SandBar 6:3, October, 2007 Illegal Lobster Importers Not Required to Pay Restitution United States v. Bengis, 2007 U.S. Dist. LEXIS 35902 (D.N.Y. May 17, 2007). Terra Bowling, J.D. In 2004, three men were convicted of conspiracy and violations of United States law prohibiting the importation of illegally captured lobster from the coast of South Africa. After the conviction, the United States government (United States) argued that the men should pay restitution to the South African government; however, a United States magistrate judge disagreed. Background The men, Arnold Bengis, Jeffrey Noll, and David Bengis, were convicted of conspiracy and violations of the Lacey Act.1 The men admitted to the illegal activity, which included catching largeA0quantities of South African rock lobster in excess of their allowed quota, bribing South African officials to keep quiet regarding their violations, and making improper customs declarations when exporting the fish to the United States.2 After the conviction, the district court deferred the issue of restitution to a United States Magistrate Judge. The United States first requested that the men pay restitution under the Mandatory Victims Restitution Act (MVRA) for the harm that the defendants had caused to South Africa by taking its lobsters. The judge recommended that the men not pay restitution under the MVRA because the defendants’ violations were regulatory in nature and not a crime against property.3 Furthermore, the judge held that the men’s regulatory violations did not cause South Africa a physical injury or pecuniary loss, another requirement under the MVRA. In January, the United States District Court for the Southern District of New York adopted a magistrate’s report and recommendation to decline to order restitution from the defendants. The United States next asked the magistrate to require the defendants pay over $41 million under the Victim and Witness Protection Act (VWPA). The VWPA The judge noted that the VWPA could apply to the men based on their conspiracy pleas. Additionally, he noted that the VWPA is not limited to offenses against property, unlike the MVRA. Despite this, the judge recommended that the court reject the government’s request, because the crimes that the men committed did not cause direct harm to the victim, as required by the VWPA. The men pled guilty to conspiracy and violations of the Lacey Act. The government argued that restitution was proper because the lobsters belonged to South Africa. However, the magistrate ultimately decided that the harm to South Africa is the overfishing of its lobsters and that the men did not plead guilty to crimes involving overfishing. Furthermore, the government did not show that South Africa incurred a loss that would make it a true and direct victim. Endnotes 1. United States v. Bengis, 2004 U.S. Dist. LEXIS 16925 (D.N.Y. 2004). 2. Id. 3. United States v. Bengis, 2006 U.S. Dist. LEXIS 91089 (D.N.Y. Dec. 19, 2006).
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SandBar 6:3, October, 2007

Illegal Lobster Importers Not Required to Pay Restitution
United States v. Bengis, 2007 U.S. Dist. LEXIS 35902 (D.N.Y. May 17, 2007).

Terra Bowling, J.D.

In 2004, three men were convicted of conspiracy and violations of United States law prohibiting the importation of illegally captured lobster from the coast of South Africa. After the conviction, the United States government (United States) argued that the men should pay restitution to the South African government; however, a United States magistrate judge disagreed.

Background
The men, Arnold Bengis, Jeffrey Noll, and David Bengis, were convicted of conspiracy and violations of the Lacey Act.1 The men admitted to the illegal activity, which included catching largeA0quantities of South African rock lobster in excess of their allowed quota, bribing South African officials to keep quiet regarding their violations, and making improper customs declarations when exporting the fish to the United States.2 After the conviction, the district court deferred the issue of restitution to a United States Magistrate Judge.
The United States first requested that the men pay restitution under the Mandatory Victims Restitution Act (MVRA) for the harm that the defendants had caused to South Africa by taking its lobsters. The judge recommended that the men not pay restitution under the MVRA because the defendants’ violations were regulatory in nature and not a crime against property.3 Furthermore, the judge held that the men’s regulatory violations did not cause South Africa a physical injury or pecuniary loss, another requirement under the MVRA. In January, the United States District Court for the Southern District of New York adopted a magistrate’s report and recommendation to decline to order restitution from the defendants. The United States next asked the magistrate to require the defendants pay over $41 million under the Victim and Witness Protection Act (VWPA).

The VWPA
The judge noted that the VWPA could apply to the men based on their conspiracy pleas. Additionally, he noted that the VWPA is not limited to offenses against property, unlike the MVRA. Despite this, the judge recommended that the court reject the government’s request, because the crimes that the men committed did not cause direct harm to the victim, as required by the VWPA. The men pled guilty to conspiracy and violations of the Lacey Act. The government argued that restitution was proper because the lobsters belonged to South Africa. However, the magistrate ultimately decided that the harm to South Africa is the overfishing of its lobsters and that the men did not plead guilty to crimes involving overfishing. Furthermore, the government did not show that South Africa incurred a loss that would make it a true and direct victim.

Endnotes
1. United States v. Bengis, 2004 U.S. Dist. LEXIS 16925 (D.N.Y. 2004).
2. Id.
3. United States v. Bengis, 2006 U.S. Dist. LEXIS 91089 (D.N.Y. Dec. 19, 2006).