Appeal from the United States District Court for the Western District of Wisconsin. No. 94 M 26--Barbara B. Crabb, Judge.
Before CUMMINGS, FLAUM and ROVNER, Circuit Judges.
ARGUED SEPTEMBER 14, 1995
Thomas Monsoor was convicted of violating the Lacey Act, 18 U.S.C. sec. 3372(a)(2)(A), when he sold in interstate commerce over 100 pounds of catfish that had been caught in violation of a Wisconsin natural resources regulation. He challenges his conviction on the ground that the government failed to prove an element of his offense. He also claims that the district court erred in denying his motion to dismiss the indictment on the grounds of vindictive and selective prosecution. We affirm.
In August 1994, Monsoor was convicted by a jury of removing and selling in interstate commerce more than 100 pounds of catfish in violation of Wisconsin Administrative Code, NR 21.12(b), which provides:
Licensees may not take more than 100 lbs of catfish per day, 15 inches or over in length from the Saturday nearest October 1 to April 30 in seines. *fn1
The government's case against Monsoor included evidence that he had taken more than 100 pounds of catfish, that he had done so by way of a seine, and that he had sold the fish in interstate commerce. The government presented no evidence, however, regarding the length of the catfish that Monsoor had taken. At the close of the government's case, Monsoor therefore moved for acquittal based on the government's failure to prove that the fish he had removed were "15 inches or over in length." Acknowledging that its case lacked this proof, the government argued that fish length was not a necessary element in establishing the regulatory violation. The district court agreed and denied Monsoor's motion. The court explained:
The reference to 15 inches or longer only reiterates the requirement that commercial fishers may not take any fish of any quantity that are shorter than 15 inches; it cannot be read as allowing the taking of more than 100 pounds of small game fish without reading out of the regulation the conservation purpose that animates it. I conclude that it was unnecessary for the government to establish the size of each fish that made up the more than one hundred pound quantity that the defendant sold in interstate commerce.
The force of this reasoning becomes clear when section NR 21.12(b) is read in the context of the entire regulation that contains it. The best starting point for this analysis is section NR 21.11, which is entitled "Commercial fishing restrictions," and, in subsection (a), provides that "[a]ll game fish taken with any net or setline must be immediately returned to the water as soon as they appear in the operation." *fn2 "Game fish" is defined in Wis. Stat. sec. 29.01 *fn3 as "all varieties of fish except rough fish and minnows." *fn4 Thus, the regulation of commercial fishing begins with a prohibition; no fish except rough fish and minnows may be taken by commercial fishers. The rest of the commercial fishing regulation then concerns itself with exceptions to this rule. "Commercial fish," those that may be taken by commercial fishers, are defined in this way:
Commercial fish include species of rough and detrimental fish as defined by this chapter, shovelnose (hackleback) sturgeon 25 inches or over in length taken only on setlines, catfish 15 inches or over in length or 12 inches and over dressed and bullheads of any length when taken with commercial fishing gear and all taken while fishing under a commercial fishing license on the Mississippi river. NR 21.02(2).
From the category "all varieties of fish," which commercial fishers are prohibited from taking, then, is carved an exception, "commercial fish," which they may take. This exception includes "catfish 15 inches or over in length." *fn5 Catfish that are less than 15 inches in length are not among the exceptions to "all . . . fish," which may not be commercially removed. They may not be taken by commercial fishers at all.
Within this general framework comes section NR 21.12, which addresses the gear that commercial fishers may use to remove fish. It lists various types of gear that are permissible, and along with each the precise uses to which it may permissibly be put. Within this list is subsection (b), which addresses the use of seines. Among the restrictions on seine use is that which formed the basis of the government's case against ...