News Story

Federal Prison For Trout Trafficking Raises Proportionality Concerns

Scholar says federal sting operation and prison sentences look like overcriminalization

Local officials for the U.S. Department of Justice recently announced sentences handed down in federal district court for illegal trafficking in Michigan lake trout. John H. Cross III was sentenced to 12 months in federal prison, to be served intermittently during a five-year probation period.

Cross and his company will also have to pay $1,032,132 in restitution to the National Fish Hatchery System. That agency, which is administered by the U.S. Fish and Wildlife Service, stocks Lake Michigan with the species of trout at the center of the case. The final judgement was handed down in federal district court in Kalamazoo on April 1.

The Cross case is the latest and final of several cases that have arisen out Operation Fishing For Funds, a federal sting operation. Spearheaded by undercover agents of the Fish and Wildlife Service, the operation investigated and revealed cases of illegal harvesting and sale of fish across the Great Lakes region. To date, 21 people have been convicted in federal and tribal courts, which have ordered that over $1.6 million be paid to the National Fish Hatchery System and tribal hatcheries.

“The federally funded stocking of fish and the regulations designed to preserve these natural and communal resources were simply treated as an opportunity for extra profit here and in other cases stemming from Operation Fishing for Funds. This was essentially stealing from competitors, the government, and ultimately the future,” said U.S. Attorney Andrew Birge of the Western District of Michigan in a prepared statement.

But Jonathan Zalewski, a Heritage Foundation visiting legal fellow, wrote in an email that the case is a textbook example of how the American criminal justice system is often misused.

“Mr. Cross’s case is yet another example of how the Lacey Act can be used to make criminals out of the unwary, average citizen,” Zalewski said. He said that the Lacey Act of 1900, a conservation law that prohibits trade in wildlife, fish, and plants that have been illegally taken, is often disproportionately applied.

“Still, even if Mr. Cross intended to break the law, it is hard to imagine that illegally transporting bushels of trout warrants a million dollar fine and one year in federal prison, where some of the country’s most hardened criminals reside,” Zalewski said. “The Lacey Act might not raise as many overcriminalization concerns if the only penalty was a civil or low-level criminal fine. The law as first enacted carried only a $200 criminal fine, but over time it was amended to include a penalty of imprisonment. Today, violators face up to one year in prison for each violation of the act. Mr. Cross received the maximum penalty for his single violation. One day in federal prison must be terrible, let alone an entire year.”

When asked whether these enforcement actions should be priorities given the resources involved, a Department of Justice spokesperson declined to comment and referred to a departmental press release.

According to the release, Cross was caught up in an illegal trafficking scheme. The court found that Cross and his company had received illegally taken fish and falsified the records of where the fish came from. Court documents indicate that Cross purchased fish from a subject only referred to as “Fisherman A.” Between September 2011 and October 2013, the lake trout that was purchased from a source — a tribal fisherman who is allegedly notorious for illegal practices at the “expense of taxpayers.”