John R. Moore Jr. and Tanner J. Mansell Were Convicted of a Crime that Does Not Exist and the Eleventh Circuit Court of Appeals, their Attorneys, and the Prosecutors All Missed the Boat

Oct 03, 2024

On September 23, 2024, the Eleventh Circuit Court of Appeals upheld the convictions of two good Samaritans, John R. Moore, Jr., and Tanner J. Mansell for theft of fishing lines they believed had been caught in an “illegal longline fishing line” in violation of federal law. As it turned out, they were wrong. Unbeknownst to them, the line had been properly placed by the owner of a seafood distribution business who had a license from the National Oceanic and Atmospheric Administration (NOAH) to conduct shark research.[1]

At trial, the government conceded that the defendants intended to save the sharks. Indeed, the government offered no evidence nor argued that the defendants retried the fishing line for their use or benefit.[2] In addition, the Eleventh Circuit Court of Appeals found that the defendants encouraged passengers on the vessel to video their efforts to save the sharks and at the time of the incident contacted a Florida Fish and Wildlife Conservation officer to notify the agency of what they had found and what actions they were taking in response.[3]

At the conclusion of the trial, the defense asked the court to instruct the jury that the government must prove that the defendants took the fishing lines for their own benefit. The Court refused. Whether the court erred in refusing to give that instruction was the only issue raised by the defense on appeal.

According to the government, no such instruction was warranted because the definition of stealing in the statute did not require that the defendants have any intent to benefit from their actions; it was enough that they deprived someone of their property.

At the beginning of its analysis, the court noted that a decision to seek an indictment rests solely within the discretion of the United States Attorney and that the reasons for the decision may not be part of the record. Moreover, the Court stated that it was not asked to determine the sufficiency of the evidence.[4]

This was a remarkable statement from the court. It meant that the court's hands were tied; that it could only consider whether the district court had abused its discretion in denying the defense instruction and nothing else that might have allowed it to reverse the convictions.

With this explanation out of the way, the Eleventh Circuit upheld the convictions, finding that the judge’s instructions were correct and that the law did not support the defendants’ argument that their conviction could only stand if the jury had been instructed that stealing meant that they had to have intended to keep the fishing lines for their own benefit or the benefit of others.

In this article, I will demonstrate that the Eleventh Circuit's interpretation of the law was erroneous, that the defendant's appellate counsel failed to raise issues on appeal that would have exonerated the defendants, that their attorneys at trial failed to preserve reversible errors for the appeal, and that the government’s lawyers at trial and on appeal engaged in prosecutorial misconduct. Indeed, I will demonstrate that Moore and Mansell’s actions were not even illegal.

1. The Eleventh Circuit Court of Appeals failed to apply the rule of statutory construction that regardless of the language used in a statute, it may not be interpreted so as to lead to an absurd result.

The United States Attorney’s Office for the Southern District of Florida concluded that Moore and Mansell had violated 18 U.S.C. §661. That statute provides:

It is a federal crime for anyone to take and carry away, with the intent to steal or purloin, any property worth more than $1,000 and belonging to another, when the offense is committed within the special maritime and territorial jurisdiction of the United States.

Based on this statute, Moore and Mansell were charged with operating a charter vessel engaged in “conducting trips for snorkelers and scuba divers to view sharks in federal waters offshore of Jupiter, Florida” when they “with the intent to steal and purloin, did take and carry away the personal property of another . . . having a value exceeding $1,000.”

At trial and on appeal, the government contended that the crime was completed when the defendant took property that did not belong to them regardless of their motivation.

Relying upon the decision of the Supreme Court in United States v. Turley,[5] the Eleventh Circuit upheld the court’s ruling. In Turley, the defendant took an automobile loaned to him by the owner and thereafter sold the car. The issue on appeal was whether Turley was guilty of stealing the car. There was no issue that he did so purposefully to enrich himself.

At common law, it was not a crime to convert to one’s own use or to sell an item that had come lawfully into the possession of a person. As the Supreme Court explained in Bell v. United States:

By the late 18th century, courts were less willing to expand common-law definitions. Thus when a bank clerk retained money given to him by a customer rather than depositing it in the bank, he was not guilty of larceny, for the bank had not been in possession of the money.[6]

In modern times, criminals developed various means to convince people to voluntarily part with their property which they then sold or used for their own purposes. In response, statutes were enacted using words such as “steal” which was not synonymous with the word “larceny” under common law. This enabled prosecutors to go after those who had deprived others of their property that did not involve a taking against their will.

Relying on Turley, the Eleventh Circuit found that Congress did not intend to limit the reach of §661 to only those cases where the accused took property for their use or profit.

Turley said nothing of the sort. The court did say that Congress intended that the word “steal” have a broader connotation than the word larceny at common law. But the court did not address the contours of that broadening. Indeed, the Eleventh Circuit ignored the very question the Supreme Court stated was before it:

The issue before us is whether the meaning of the word ‘stolen,’ as used in this provision, is limited to a taking that amounts to common-law larceny, or whether it includes an embezzlement or other felonious taking with intent to deprive the owner of the rights and benefits of ownership.[7]

Nowhere in the opinion will you find any discussion of whether the offense included a requirement that the defendant take a car for his own purposes or benefit. AND THE REASON. That was not an element of larceny at common law.

In the specific case before it, the Supreme Court was only called upon to determine whether the word seal was limited to involuntary takings, it did not address whether “to steal” required that the accused have benefited from their acts. Indeed, the Supreme Court stated:

That criminal statutes are to be construed strictly is a proposition that calls for the citation of no authority. But this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.[8]

But that is precisely what the Eleventh Circuit did. Even in this era of textualism, where courts eschew legislative history, courts must interpret a statute based on its evident purpose as reflected in the entirety of its text. As Justice Scalia made clear, textualism is not the same as a strict construction, and “a court should not adhere to a literal reading of a statute that leads to an absurd result.” Antonin Scalia and Bryan A. Gardner, Reading Law: The Interpretation of Legal Texts, p. 234 (Thompson/West 2012). See also Tennessee Wine & Spirits Retailers Ass'n v. Thomas (principle applied by Justice Alito).[9]

In Turley, the Supreme Court recognized that “Freed from a common-law meaning, we should give ‘stolen’ the meaning consistent with the context in which it appears.”[10]

In other words, a court must use common sense when interpreting a statute. To the extent that the Supreme Court in Turley held that Congress intended that the word steal to apply where the defendant came into possession of someone’s property with their consent, there is no reason to believe that Congress intended that the word punish people who did not seek to benefit to any extent or in any way from their actions, particularly when, as here, they believed that they were following the law and the officials they contacted did not say anything to the contrary. Thus, even if the Eleventh Circuit’s decision is linguistically defensible, it is absurd. What Moore and Mansell did was simply not a crime.

2. Arguments that the prosecutor committed misconduct by misleading the jury and that the evidence presented by the government was insufficient to prove the defendant’s guilt should have been raised on appeal

At the beginning of the court’s analysis, the court explained that it was not asked to review the sufficiency of the evidence nor was it privy to whatever went on behind the scenes that may have led to the defendants’ indictment.

Were there issues that the defense should have raised? The answer is yes. But before getting into the merits of my views, some background is necessary. Appellate Advocacy 101 teaches that an appellate court rarely finds merit in more than one issue raised in an appeal, and that counsel loses credibility raising more than three or four issues, not to mention wasting the limited space allotted to fully develop their arguments. Experienced lawyers believe that they know which of their issues is strongest and in such cases, they may decide that they will only raise the one issue that stands a chance of prevailing.

That decision is informed by the following perception: (1) reversal of a conviction on the grounds of insufficiency of the evidence is about as likely as getting hit by lightning (1/1.6 m); (2) reversal of a conviction based upon prosecutorial misconduct is about as likely as being bit by a shark(1/1.3m); (3) of all the issues that can result in a reversal of a conviction, reversal on the grounds of erroneous jury instructions has the greatest likelihood of success.

There were three issues raised in the defendants’ post-trial motion for a judgment of acquittal and for a new trial: sufficiency of the evidence, prosecutorial misconduct, and the court’s refusal to give the defendants’ theory of defense instruction.

Appellate counsel decided not to raise sufficiency of the evidence or prosecutorial misconduct on appeal. Of course, given the Court's statements, it is clear that appellate counsel should have raised those issues, but hindsight is 20/20.

Nevertheless, I believe that a review of the defendants' post-trial motion for judgment of acquittal and for a new trial and the government’s response, demonstrates that both issues were particularly strong. Even viewed in a light most favorable to the jury’s verdict, this is a rare case where the Eleventh Circuit could have found that the evidence presented by the government was insufficient to prove that the defendants acted unlawfully. Unlike the jury instruction issue, a reversal on insufficiency ends the case, the defendants cannot be retried.

The basis for finding that the evidence was insufficient was articulated by Judge Lagoa in his concurrence:

John Moore, Jr., and Tanner Mansell are felons because they tried to save sharks from what they believed to be an illegal poaching operation. They are the only felons I have ever encountered, in eighteen years on the bench and three years as a federal prosecutor, who called law enforcement to report what they were seeing and what actions they were taking in real-time. They are felons who derived no benefit and never sought to derive any benefit, from the conduct that now stands between them and exercising the fundamental rights from which they are disenfranchised. What's more, they are felons for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in.[11]

That his views were shared by a majority of the court is demonstrated by Judge Wilson’s statement earlier in the opinion that the court was precluded from considering the sufficiency of the evidence.

As to prosecutorial misconduct, it is well settled that a prosecutor cannot mislead a jury by presenting evidence or stating facts that the prosecutor knows to be untrue. The fact that the evidence of the truth was inadmissible for some reason does not permit a prosecutor to mislead the jury. In this case, the prosecutor argued that Moore did not contact the Florida Wildlife Officer until 4:30 pm when in fact the agency was contacted hours earlier, at 2:45 pm shortly after the defendants began to reel in the line. The time that the defendants reached out to the officer was an important part of the prosecutor's argument because the prosecutor claimed that the delay was purposeful which showed the defendants’ criminal intent.

While the government attempted to justify its statements to the jury in its response to the defendants’ motion before the district court, had this issue been raised on appeal, and the government’s explanation presented to the Eleventh Circuit, the court would undoubtedly have rejected it.

Moreover, in Davis v. Zant, the Eleventh Circuit reversed a conviction in similar circumstances.[12] This means that this argument was stronger than the jury instruction issue that was raised because there was favorable case law supporting the defendants’ position. By contrast, the Eleventh Circuit had yet to interpret §661.

There was also prosecutorial misconduct on appeal. At trial, the government conceded that the defendant's motive was to save the sharks and other sea animals caught in the fishing lines. There was no evidence to the contrary. On appeal, the government's lawyers claimed that the defendants brought in the fishing lines and freed the sharks as part of giving their passengers the “shark experience.”[13] Not only was this argument not made in the district court, it was also contrary to the evidence at trial and the argument the trial prosecutor presented to the jury.

This is evidence that the appellate division of the USAO was not confident in the argument made to the jury so needed to find a better justification for the prosecution to present to the Eleventh Circuit.

I have not spoken to appellate counsel. There may be factors I am not aware of that justify their decision not to raise these issues initially before the Eleventh Circuit. However, given what the Eleventh Circuit stated in its opinion, they should be raised on rehearing, whether or not they are technically precluded from doing so.

3. Although not raised in the district court, the defendants’ appellate counsel should have argued that the defendants were denied due process of law based upon the failure of the court to provide further instruction on terms the jury made clear it did not understand.

In the course of its deliberations, which lasted longer than the trial, the jury sent seven notes to the court.

In one note the jury asked the court for further guidance on the term "mistake" and further clarity on what constitutes "bad purpose." The court responded that the jury would have to rely on their common sense and what they were told in the instructions.

In a second note, the jury asked the court for further guidance on the terms “knowing” and “willfully” as they applied to the charges. The judge recognized that the terms had only been defined and did not appear in the instructions on the elements of the offenses and modified the instructions accordingly.

Finally, after the jury informed the court that it was deadlocked the court read them an Allen charge. After deliberating two more hours, the jury sent the court another note asking it if there were "any other defense theories" related to the elements. The court told them to consider all the instructions including the defense's theory of the case.[14]

Forty minutes later the jury found the defendants guilty.

For longer than I have been an attorney, judges, lawyers, law professors have recognized that jury instructions are often too complicated or confusing for jurors to understand. Nevertheless, judges have been reluctant to vary from court-approved pattern instructions for fear of being reversed (which is usually the case).

In the run of cases, courts refuse to get drawn into this quagmire, believing that when the evidence is sufficient, even if the jury did not quite understand the law, the jury got it right anyway—so no harm, no foul. In this case, however, we know the jury did not understand the law. The jury could not have been clearer on that point.

In a case such as this, where the court has indicated that it has doubts about the defendants' guilt, will the court just sit back and allow innocent people to deal with the significant disabilities attendant to being a convicted felon because the law does not recognize what happened to them was a structural error, because no one has figured out how to address the overall problem of incomprehensible jury instructions?

In the old days (and I am old enough to remember the old days) the court would have simply issued a PCR (per curiam reversal) and the government would have gotten the message to bury this case.

4. Trial counsel should have asked the judge for a mistake of fact instruction.

In a footnote to his concurrence, Judge Lagoa discussed the mistake of fact defense. Trial counsel should have asked the court to instruct the jury on mistake of fact, relying on all the circumstances discussed herein.[15] Again, for reasons I am not privy to, trial counsel did not which precluded the issue from being raised on appeal.

Conclusion

It is not too late for the Eleventh Circuit to prevent a miscarriage of justice. The defendants have until October 7 to seek a rehearing (although they have asked for an extension). What they should do is file a motion requesting that the Court vacate its decision and permit re-briefing of the issues (which would not run afoul of the limitations on seeking rehearing).

When I was in the appellate division of the United States Attorney's Office for the Southern District of Florida some 42 years ago, after reading the court’s decision, my boss would have agreed to this request.

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