                              PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 15-4498


UNITED STATES OF AMERICA,

               Plaintiff - Appellant,

          v.

GASTON L. SAUNDERS,

               Defendant - Appellee.

------------------------

ATLANTIC STATES MARINE FISHERIES COMMISSION,

               Amicus Supporting Appellant.



                             No. 15-4501


UNITED STATES OF AMERICA,

               Plaintiff - Appellant,

          v.

BRYAN H. DANIELS,

               Defendant - Appellee.

------------------------

ATLANTIC STATES MARINE FISHERIES COMMISSION,

               Amicus Supporting Appellant.
                              No. 15-4505


UNITED STATES OF AMERICA,

                  Plaintiff - Appellant,

          v.

MICHAEL POTTER,

                  Defendant - Appellee.

------------------------

ATLANTIC STATES MARINE FISHERIES COMMISSION,

                  Amicus Supporting Appellant.



                              No. 15-4506


UNITED STATES OF AMERICA,

                  Plaintiff - Appellant,

          v.

STEPHEN DANIELS,

                  Defendant - Appellee.

------------------------

ATLANTIC STATES MARINE FISHERIES COMMISSION,

                  Amicus Supporting Appellant.




                                   2
Appeals from the United States District Court for the Eastern
District of North Carolina, at Greenville and Wilmington. James
C. Fox, Senior District Judge.      (4:14-cr-00008-F-1; 4:14-cr-
00011-F-1; 2:15-cr-00006-F-1; 2:15-cr-00004-F-1)


Argued:   May 12, 2016                      Decided: July 5, 2016


Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and Norman K.
MOON, Senior United States District Judge for the Western
District of Virginia, sitting by designation.


Reversed and remanded by published per curiam opinion.


ARGUED: Brian C. Toth, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant.     Joseph Edward Zeszotarski,
Jr., GAMMON, HOWARD, ZESZOTARSKI, PLLC, Raleigh, North Carolina,
for Appellees.    ON BRIEF: John C. Cruden, Assistant Attorney
General, Environment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellant. John P. O’Hale, NARRON, O’HALE &
WHITTINGTON, PA, Smithfield, North Carolina, for Appellees.
Sean H. Donahue, DONAHUE & GOLDBERG, LLP, Washington, D.C., for
Amicus Curiae.




                                3
PER CURIAM:

       Four commercial boat captains were charged with violating

the Lacey Act after they caught Atlantic striped bass in federal

waters       and    later     sold    them.       The   Lacey        Act,     through        its

incorporation of a federal regulation, criminalizes the taking

and selling of Atlantic striped bass from federal waters. The

Act,       however,       exempts     from        prosecution        fishing          that     is

“regulated by a fishery management plan in effect” under the

Magnuson-Stevens            Fishery     Conservation           and     Management            Act

(“Magnuson-Stevens Act”).               16 U.S.C. § 3377(a).                     Citing that

exception, the captains moved to dismiss the indictments.

       The    district        court    granted       the     motions        based      on    two

premises.      It first found that a fishery management plan created

by     the         Atlantic      States       Marine          Fisheries           Commission

(“Commission”)         and    referenced      in     the      Atlantic       Striped         Bass

Conservation        Act    (“Bass     Act”)   must      be    treated       as    a   plan     in

effect under the Magnuson-Stevens Act. 1                     Next, the district court


       1
       The Government asserts error on that point, arguing that
16 U.S.C. § 5158(c)—which catalyzed the district court’s
reasoning—contains a scrivener’s error.       That is, Section
5158(c)’s reference to “any plan issued under subsection (a)” is
a textual anomaly, because subsection (a) in fact authorizes
only regulations by the Secretary of Commerce, not plans.    The
Government attributes this dissonance to a drafting oversight in
1991 that left the “any plan” language in the statute while
excising related verbiage.    Compare Pub. L. No. 100-589, 102
Stat. 2984, at § 6 (Nov. 3, 1988) with Pub. L. No. 102-130, 105
Stat. 626, at § 4(1)-(2) (Oct. 17, 1991).
(Continued)
                                              4
reasoned that the Commission’s plan regulated the boat captains’

activity in federal waters.              Thus, the district court found that

the exception applied.

      We conclude, however, that the text of the plan created by

the Commission and referenced by the Bass Act in fact regulates

only state coastal waters, and accordingly does not regulate

fishing in federal waters. The only possible hook to federal

waters in the Commission’s plan is the general statement that

the Secretary of Commerce has authority to regulate bass fishing

in federal waters. Even if this statement was enough to say that

the   plan    regulated        federal     waters    (which    it   is   not),   the

provision would be invalid, because the Commission—a collection

of state representatives—has no authority to delegate power over

federal waters to the Secretary of Commerce.

      Accordingly, we remand these cases to the district court

with instructions to reinstate the indictments.

                                I.   THE INDICTMENTS

      The    Appellees         Gaston    Saunders,    Bryan    Daniels,     Michael

Potter,      and     Stephen     Daniels        (hereinafter    referred    to   as

“Captains”)        are   the    captains    of    commercial    fishing    vessels.

During 2009 and 2010, the captains each harvested several tons



     Because this appeal can be resolved without deciding
whether 16 U.S.C. § 5158(c) contains a scrivener’s error, we do
not reach the issue.


                                            5
of bass from federal waters (known as the “exclusive economic

zone,” or EEZ 2), which they subsequently transported and sold to

commercial seafood dealers. 3

     Based on these actions, on January 15, 2015, the Government

brought        separate     indictments       containing       multiple    Lacey     Act

counts against each captain.                  The Government now appeals the

district court’s dismissal of the indictments against Captains

Potter and Stephen Daniel in full and against Captains Saunders

and Bryan Daniels in part. 4            We consolidated the four cases.

                          II.   THE REGULATORY FRAMEWORK

                                 A.     The Lacey Act

         The    Lacey     Act   makes    it       a   crime   to   take   wildlife    in

violation       of   some    other    federal         law.    Specifically,     it   is

illegal to, inter alia, transport, acquire, or sell any fish

“taken possessed, transported, or sold in violation of any law,

treaty, or regulation of the United States . . . .”                       16 U.S.C. §

3372(a)(1).          If one does so “by knowingly engaging in conduct


     2    On the eastern seaboard, the EEZ extends from three to
200 miles offshore.     See 16 U.S.C. § 1802(11); 50 C.F.R. §
600.10; 48 Fed. Reg. 10,605, 1983 WL 506851 (Mar. 10, 1983).
     3     The indictment charged that these bounties involved
bass with a market value greater than $350, as required by the
Lacey Act. See 16 U.S.C. 3373(d)(1)(B).
     4    The indictments against Captains Saunders and Bryan
Daniels also included counts for making false statements and
aiding and abetting. Those counts are not before us.



                                              6
that involves” the sale of such ill-gotten fish having a market

value over $350, then he may be imprisoned, fined, or both.                                      Id.

§ 3373(d)(1)(B).

       Because the Bass Act, described below, forbids anyone from

harvesting, retaining, possessing, or fishing for bass in the

EEZ, the captains allegedly violated the Lacey Act when they

caught several tons of bass in the EEZ during 2009 and 2010.

                      B.        The Bass Act and the Commission

       Congress           has     found        that       Atlantic       striped        bass     are

commercially,         economically,            and       recreationally      important.          16

U.S.C.    §    5151(a)(1).            Due       to       their   migratory    nature,          “[n]o

single    government            entity    has     full      management      authority”          over

bass.     Id. § 5151(a)(2).                    Congress enacted the Bass Act “to

support       and     encourage          the    development,         implementation,             and

enforcement          of     effective          interstate          action     regarding          the

conservation and management of the Atlantic striped bass.”                                      Id.

§    5151(b).         To    accomplish          this       goal,   the     Bass    Act    divides

regulatory          authority       over        Atlantic         striped     bass       into    two

distinct, but interrelated, schemes: (1) federal waters and (2)

state coastal waters.

       First, Congress outlined the regulation of bass in federal

waters. 16 U.S.C. § 5158; see id. §§ 5152(6), 1802(11); supra

footnote 2.          Section 5158(a) commands the Secretary of Commerce

to    “promulgate           regulations          governing         fishing        for    Atlantic

                                                     7
striped bass in the exclusive economic zone . . . .”                                 The

Secretary of Commerce must “consult” with, among others, the

Commission      when    preparing    her       rules.        Id.   §   5158(b).       In

addition to other standards, her regulations must be “compatible

with the Plan and each Federal moratorium in effect on fishing

for Atlantic striped bass within the coastal waters of a coastal

State.”       Id. § 5158(a)(2) (emphasis added).

       A state coastal waters “plan” under the Bass Act is a plan

(or amendment to such plan) for managing bass “that is prepared

and adopted by the Commission.” 16 U.S.C. §§ 5152(5), 5152(10).

The   Bass     Act   instructs    the    Commission       to    annually     determine

whether       its    member-States      have    adopted        measures     for    their

“coastal waters” (i.e., zero to three miles offshore) that fully

implement and satisfactorily enforce the Commission’s plan.                          Id.

§ 5153(a); see id. § 5152(3).             The Commission then notifies both

the     Secretary       of   Commerce          and      Secretary      of     Interior

(“Secretaries”) of each such “negative determination.”                             Id. §

5153(c); see id. § 5152(3).                At that point, the Secretaries

jointly determine whether the particular State is, in fact, in

compliance with the Commission’s plan.                   If not, the Secretaries

“declare jointly a moratorium on fishing for Atlantic striped

bass within the coastal waters of that coastal State,” violation

of    which    is    punishable   civilly.       Id.    §§     5154(a),     (c).     The

prospect of this federally-imposed moratorium therefore acts as

                                           8
an enforcement mechanism against recalcitrant States that refuse

to    abide    by   the    Commission’s           plan       governing       state    coastal

waters. 5

       A    brief    comment       on     the     Commission’s          history       further

illuminates the genesis and structure of the Bass Act.                                    States

cannot enter into any agreement or compact without the consent

of    Congress.      U.S.       Const.    art.     I,    §    10,     cl.    3.      In    1941,

Congress      approved      the    interstate           compact       that    created        the

Commission and endeavored to better manage fish populations on

the Atlantic seaboard.            Pub. L. No. 77-539, 56 Stat. 267 (May 4,

1942); see also Pub. L. No. 81-721, 64 Stat. 467 (Aug. 19, 1950)

(approving addition of new States and repealing limitation on

the    life   of    the    compact);        New    York       v.    Atl.     States       Marine

Fisheries Comm’n, 609 F.3d 524, 528 (2d Cir. 2010); Rhode Island

Fishermen’s All., Inc. v. Rhode Island Dep’t of Envtl. Mgmt.,

585 F.3d 42, 46 (1st Cir. 2009).                   Under the compact, each State

appoints      members     to     the     Commission,          which    is     charged      with

investigating       conservation         measures,       offering        suggestions        for

coordination        of    the     States’       police       powers,        and   presenting



       5  See Note, Joseph A. Farside, Jr., Atlantic States
Marine Fisheries Commission: Getting A Grip on Slippery
Fisheries Management, 11 Roger Williams U. L. Rev. 231, 242
(2005)   (explaining   that   “threat  of  a  moratorium”   and
corresponding “millions of dollars of lost business” encourages
States to comply with Commission’s plan).



                                             9
recommended legislation to the member-States.                        56 Stat. 267-68;

New York, 609 F.3d at 528.

       Exercising these powers, the Commission in 1981 issued its

first plan for Atlantic striped bass fishing in state coastal

waters.     Atlantic States Marine Fisheries Commission, Fisheries

Mgmt. Rep. No. 1: Interstate Fisheries Mgmt. Plan of the Striped

Bass   (Oct.   1981)    (“1981    Plan”).        Faced        with    declining     bass

populations,     the    1981     Plan    put     forth      several      “recommended

management measures.”           Id. at 1-1 & 1-4.                But “attempts at

implementing the plan failed due to [the Commission’s] lack of

direct     regulatory     authority       over        the     individual       Atlantic

states.”       Note,   Thomas    Rapone,       The    EEZ     Solution    to   Striper

Management: Why the Federal Government Should Ban the Commercial

Harvest of Striped Bass Once and for All, 44 Suffolk U. L. Rev.

567, 569 (2011); see id. at 577 (observing that as the product

of “a mere interstate compact, the [Commission] still lacked the

regulatory authority to force individual states to comply”); New

York, 609 F.3d at 528; see also Atlantic States Marine Fisheries

Commission,     Fishery    Mgmt.        Rep.    No.     41,    Amend.      6   to   the

Interstate Fishery Mgmt. Plan for Atl. Striped Bass, at p.39 §

5.0 (Feb. 2003) (“Amendment 6”) (observing that “Commission does

not have the authority to directly compel state/jurisdictional

implementation of the measures” proposed).



                                         10
     Against    the   backdrop      of   this   collective   action   problem,

Congress passed the Bass Act in 1984, Pub. L. No. 98-613, 98

Stat. 3187 (Oct. 31, 1984), which functions as the cooperative

federalism scheme explained above and summarized in the chart

below.

                           State coastal waters       Federal waters (EEZ)
                           (0-3 miles offshore)            (3-200 miles
                                                             offshore)
States’    regulatory Primary.                        Secondary.
role                  Commission designs              Commission provides
(via Commission)      plan for state                  input to Secretary
                      coastal waters and              of Commerce as she
                      annually notifies               formulates
                      the Commerce and                regulations for the
                      Interior Secretaries            EEZ.
                      of non-compliance.              § 5158(b).
                      § 5153.

Federal      regulatory Secondary.                    Primary.
role                    Secretaries of                Secretary of
                        Commerce and                  Commerce issues
                        Interior make final           regulations for the
                        determinations of             EEZ, which must be
                        non-compliance with           “compatible with”
                        plan and declare              Commission’s plan
                        moratorium in                 for coastal waters.
                        offending State’s             §5158(a)(2).
                        coastal waters. §
                        5154(a).



                      C.    The Lacey Act Exemption

    The Lacey Act exempts conduct from prosecution if it was

“activity    regulated     by   a   fishery     management   plan   in   effect

under” the Magnuson-Stevens Act.              16 U.S.C. § 3377(a) (emphasis

added).     A Magnuson-Stevens Act plan is quite different from a


                                         11
plan created by the Commission.              Magnuson-Stevens Act plans are

created by one of eight regional councils (or occasionally the

Secretary of Commerce) composed of various state and federal

officials.     Id. §§ 1852(a)(1), (b)-(c), 1854(c).                  The regional

councils themselves are creatures of the Magnuson-Stevens Act,

id. § 1852(a)(1), not an interstate compact like the Commission.

And   unlike   Commission      plans,    regional      councils’         plans   must

include federally-mandated provisions and are subject to final

approval by the Secretary of Commerce.             Id. §§ 1853(a), 1854(a).

      In any event, to resolve these appeals we need only decide

whether the Commission’s plan (which the district court treated

as a Magnuson-Stevens Act plan) regulates the captains’ activity

of bass fishing in federal waters.               See supra footnote 1.              To

that question we now turn.

                               III.   DISCUSSION

      “We review a district court’s decision to grant a motion to

dismiss an indictment de novo.”              United States v. Good, 326 F.3d

589, 591 (4th Cir. 2003).

                       A.    The Commission’s plan

      The   district   court      concluded     that   the    Commission’s        plan

authorizes the Secretary of Commerce to regulate striped bass in

federal waters, the EEZ.          It further noted that the Secretary of

Commerce     promulgated     a     regulation—50        C.F.R.      §     697.7(b)—

“prohibiting    fishing     for    Atlantic     striped      bass   in    the    EEZ,”

                                        12
which is “the same regulation under which [defendants are] being

prosecuted.” Thus, the district court held the Commission’s plan

regulates      the   captains’    conduct    (by    way      of   the     Secretary      of

Commerce’s rule that the plan “authorized”), and the Lacey Act

exemption applies.       We disagree.

      1. The plan does not authorize the Secretary of Commerce’s

                                   regulation

       As an interpretive manner, the Commission’s plan does not

authorize      the   Secretary    of   Commerce        to   issue       the    regulation

banning fishing for bass in federal waters.

       The text of the Commission’s plan does not purport to grant

any    power    to   regulate     federal    waters         to    the    Secretary       of

Commerce.       In    fact,   a   portion    of    a    2003      amendment       to   the

Commission’s plan reads:

       Management of striped bass in the EEZ is within the
       Jurisdiction of the Secretary of Commerce.      The
       responsibilities of the Secretary of Commerce are
       detailed in the Atlantic Striped Bass Conservation
       Act.

Amendment 6, at p.38 § 4.8.8.1.                   This provision is a simple

acknowledgement by the Commission of the Secretary of Commerce’s

independent      authority    under    the   Bass      Act.       See     16    U.S.C.    §

5158(a); 55 Fed. Reg. 40,181, 1990 WL 351745 (Oct. 2, 1990); 50

C.F.R. § 697.1.         Moreover, Section 2.4 of Amendment 6 defines

the    plan’s    “management      unit”      to    expressly        “exclud[e]         the

Exclusive Economic Zone (3-200 nautical miles offshore).”                              Id.

                                        13
at   v    &    20;    see   id.    at    vii    &    39    §    4.9     (recognizing      that

“management of striped bass in the exclusive economic zone (EEZ)

is the responsibility of the Secretary [of Commerce],” while

also     making      non-binding        recommendations          to     the   Secretary     of

Commerce regarding federal waters as contemplated by 16 U.S.C.

§§   5158(a)(3),       (b)).       In    other      words,       the    Commission’s      plan

disclaimed any regulatory role over federal waters and instead

recognized       the    regulation       of    federal         waters    as   part   of    the

powers granted to the Secretary of Commerce by the Bass Act.

         In sum, nothing in the Commission’s plan purports to grant

authority over federal waters to the Secretary of Commerce.

       2. The plan cannot authorize the Secretary of Commerce’s

                                        regulation

         Even had the Commission tried to endow the Secretary of

Commerce       with    some    form     of     power      over    federal     waters,      the

attempt would have been legally meaningless.

         The   Secretary      of   Commerce         is    the    head    of   an   executive

department of the United States and a member of the President’s

cabinet. See 5 U.S.C. § 101; U.S. Const. Art. II, § 2, cl.2.                               In

other words, she derives her authority from federal sources—acts

of Congress and the inherent Article II powers of the Executive

Branch.        As it pertains to this case, her power to regulate

federal waters comes directly from the Bass Act. 16 U.S.C. §

5158(a).

                                               14
       The   Commission,         by    contrast,        is    the    creature     of    an

interstate compact that binds only the sovereign States that are

parties to it.         See Pub. L. No. 77-539, 56 Stat. 267 (May 4,

1942); New York, 609 F.3d at 526.                  It is, for instance, “not a

federal      agency    within         the   meaning      of    the”     Administrative

Procedure Act, i.e., not an “authority of the Government of the

United States.”        New York, 609 F.3d at 527.                   “The fact that the

[Commission] was created by an interstate compact and approved

by Congress does not alter th[e] analysis.” Id. at 532; see id.

at 533 (“we cannot escape the fact that the entity itself is an

aggregation of states”).

       Simply   put,    the      Commission,       as    a    compilation    of    State

representatives,       is   charged         with   regulating        the   States’     own

waters.      See id. at 527; Medeiros v. Vincent, 431 F.3d 25, 27

(1st Cir. 2005).         The Secretary of Commerce regulates federal

waters because that is what Congress told her to do in the Bass

Act.    The Secretary of Commerce needs nothing further, and the

Commission has nothing to bestow on her.

                            B.    Void for Complexity

       As an alternative ground for affirming the district court,

the captains ask us to find that the statutory scheme here is

void for vagueness.         We disagree with the captains’ argument.

       A statute is unconstitutionally vague if it “(1) ‘fails to

provide people of ordinary intelligence a reasonable opportunity

                                            15
to understand what conduct it prohibits’ or (2) ‘authorizes or

even       encourages      arbitrary       and        discriminatory        enforcement.’”

United States v. Shrader, 675 F.3d 300, 310 (4th Cir. 2012)

(quoting      Hill    v.    Colorado,      530       U.S.    703,    732    (2000)).      The

captains      present       only    the    first       theory.        In    assessing     the

existence      of    fair       notice,    we    consider          “whether   a   statute’s

prohibitions         are   set     out    in    terms       that    the    ordinary    person

exercising ordinary common sense can sufficiently understand and

comply with.”         Id. (internal quotation omitted).

       The captains’ vagueness argument contains an oddity and an

irony.       The oddity is that vagueness challenges usually target a

particular      word       or    phrase    as        critically      deficient. 6       Here,

however, the captains launch a broadside attack on the entire

“statutory       framework”         as    unconstitutionally              “convoluted     and

confusing.”

       The irony is that this claimed convolution is mainly the

product of the exceptionally novel (and ultimately unsupported)

reading of the Lacey Act, Bass Act, and the Commission’s plan



       6  See, e.g., Johnson v. United States, -- U.S. --, 135
S. Ct. 2551 (2015) (voiding “residual clause” in Armed Career
Criminal Act); United States v. Shrader, 675 F.3d 300, 310-12
(4th   Cir.   2012)  (evaluating   statutory  terms   “harass,”
“intimidate,” and “course of conduct”); Martin v. Lloyd, 700
F.3d 132, 136 (4th Cir. 2012) (courts must place particular
“phrases or words” in context when considering a vagueness
challenge).



                                                16
that the captains urged below.                The Government’s theory in the

indictments    was    straightforward:           the   Lacey       Act    criminalizes

taking wildlife in violation of a federal regulation; a federal

regulation under the Bass Act makes it illegal to fish for bass

in   federal   waters;       the   captains     fished       for   bass    in   federal

waters; therefore, the captains committed Lacey Act crimes.

      To support their position, the captains tally the number of

statutes, plans, and regulations they say must be consulted to

divine   whether     their    conduct    was     illegal.          But   counting     the

number of laws in a case is a poor way to decide a due process

challenge:       Our     sister       circuits    have       squarely      held     that

regulatory     complexity      does    not    render     a    statute     (or   set    of

statutes) unconstitutionally vague.

      We recognize that putting together the pieces of this
      regulatory puzzle is not easy. To understand the crime
      with which Defendant was charged, one must look at
      four sources and read them together . . . . But a
      statute does not fail the vagueness test simply
      because it involves a complex regulatory scheme, or
      requires that several sources be read together, and
      Defendant has not directed us to a single case in
      which we have held otherwise.

United States v. Zhi Yong Guo, 634 F.3d 1119, 1122 (9th Cir.

2011); see United States v. Griffith, 85 F.3d 284, 288 (7th Cir.

1996) (“The statutory structure involved is admittedly somewhat

complicated—it takes three steps to get from state prostitution

to federal money laundering. But complication is not tantamount

to unconstitutional vagueness.               Here, each step in the statutory

                                         17
analysis is well-defined.”) (emphasis in original).                      We think

the principle of law in these cases is sound.                      Moreover, a

“statute need not spell out every possible factual scenario with

‘celestial precision’ to avoid being struck down on vagueness

grounds.” United States v. Whorley, 550 F.3d 326, 334 (4th Cir.

2008).

      We hasten to add that the straightforward prohibition here—

colloquially, “don’t fish for bass in federal waters”—has been

on the books and readily comprehensible to those in the fishing

industry (much less the general population) for over a quarter-

century.   55 Fed. Reg. 40,181, 1990 WL 351745 (Oct. 2, 1990);

see Atlantic States Marine Fisheries Commission, Addendum IV to

Amend. 6 to the Interstate Fishery Mgmt. Plan, at p.5 § 2.3.3

(Oct. 2014) (“Federal waters . . . ha[ve] been closed to the

harvest, possession and targeting of striped bass since 1990”).

Further,   “economic     regulation    is    subject     to    a   less    strict

vagueness test because its subject matter is often more narrow,”

and   because   market   participants       “can   be   expected    to    consult

relevant legislation in advance of action.”                   Vill. of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498

(1982); see United States v. Sun, 278 F.3d 302, 309 (4th Cir.

2002).




                                      18
     The Lacey Act also contains a scienter requirement (two of

them,    in    fact),   thus   forcing       the   Government   to    prove    the

captains’ knowledge.

     Any person who violates [inter alia, 16 U.S.C. §
     3372(a)]  by   knowingly  engaging  in   conduct  that
     involves the sale or purchase of, the offer of sale or
     purchase of, or the intent to sell or purchase, fish
     or wildlife or plants with a market value in excess of
     $350, knowing that the fish or wildlife or plants were
     taken, possessed, transported, or sold in violation
     of, or in a manner unlawful under, any underlying law,
     treaty or regulation, shall be fined not more than
     $20,000, or imprisoned for not more than five years,
     or both.

16 U.S.C. § 3373(d)(1)(B).            A “scienter requirement alone tends

to defeat” vagueness challenges to criminal statutes.                       United

States v. Jaensch, 665 F.3d 83, 90 (4th Cir. 2011); see Gonzales

v. Carhart, 550 U.S. 124, 149 (2007) (“scienter requirements

alleviate vagueness concerns”); Colautti v. Franklin, 439 U.S.

379, 395 & n.13 (1979) (recognizing “that the constitutionality

of a vague statutory standard is closely related to whether that

standard incorporates a requirement of mens rea”); United States

v. McLean, 715 F.3d 129, 137 (4th Cir. 2013); United States v.

Shrader, 675 F.3d 300, 311 (4th Cir. 2012); see also United

States    v.    Lee,    937    F.2d    1388,       1394-95   (9th    Cir.     1991)

(sustaining Lacey Act conviction against vagueness challenge due




                                        19
to scienter requirement).     Consequently, we find no merit to the

captains’ vagueness argument. 7

                              *    *         *

     We conclude that the Lacey Act, 16 U.S.C. § 3377(a), does

not except from prosecution the captains’ conduct alleged in the

indictments.    We also reject the contention that the regulatory

regime   governing   the   captains’    actions      is   unconstitutionally

vague.   Accordingly, we reverse the orders of the district court

dismissing     the   indictments       and       remand   the   cases   with

instructions that the indictments be reinstated.

                                                      REVERSED AND REMANDED




     7    The captains’ overbreadth argument (in truth, a single
mention of the term) is insufficiently presented and thus
waived. The same conclusion applies to their passing reference
to the rule of lenity, which—like their vagueness challenge—does
not direct us to any particular statutory words or phrases that
we should interpret leniently.



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