Wednesday, January 5, 2011
Jan 4: In the U.S. Court of Appeals, Second Circuit, Case No. 07-4895. In this case, which was argued over two years ago (December 10, 2008), the United States of America appeals from two orders of the United States District Court
for the Southern District of New York which denied its applications for a restitution award in favor of the Republic of South Africa, pursuant to, first, the Mandatory Victims Restitution Act of 1996 (MVRA), and second, the Victim and Witness Protection Act of 1982 (VWPA). The Appeals Court ruled that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, and (2) is a victim, as defined by the MVRA and VWPA, eligible to receive restitution. Accordingly, the Appeals Court said, "restitution is owed to South Africa."
The case involves the fact that from 1987 to 2001, Arnold Bengis, Jeffrey Noll and David Bengis (jointly, defendants) engaged in an elaborate scheme to illegally harvest large quantities of South Coast and West Coast rock lobsters in South African waters for export to the United States in violation of both South African and U.S. law. The district court held that South Africa had no property interest in either the lobsters that the defendants took from South African waters; that the government failed to prove that the illegally harvested lobsters were the property of South Africa; and finally that even if restitution was permissible as a matter of law, "the complication and prolonging of the sentencing process resulting from the fashioning of the order of restitution under this section would outweigh the need to provide restitution to the Republic of South Africa."
The Appeals Court reversed and remanded the district court orders and said, ". . .we hold that South Africa: (1) has a property interest in rock lobsters unlawfully harvested from its waters, (2) is a victim for restitution purposes, as defined by the MVRA and VWPA, and (3) whatever the complexity in fashioning a restitution order in this case, it is insufficient to preclude entry of such an order under the MVRA. Accordingly, the judgments of the district court are vacated and the case is remanded to the district court for further proceedings consistent with this opinion."
Access the complete opinion (click here).
Posted by WIMS at 4:22 PM