Mike Fox
This blog is an update of the Dec. 24, 2024 post, “DOJ Jumps the Shark.”
Imagine you were operating a shark diving charter boat in Florida and came across a long fishing line that you believed to be the work of poachers. You haul in the line, release a number of fish, and take the rig back to the marina after notifying state officials.
If it turns out you were mistaken and had actually stumbled onto a bona fide research project, would it be fair to charge you with “stealing” the line you hauled in and left on the dock? The US Department of Justice thought so and pursued felony charges against the two boat operators, John Moore and Tanner Mansell, for theft of property within the “special maritime jurisdiction” of the United States.
Defense counsel asked the trial judge to instruct the jury that stealing property means wrongfully taking it “[w]ith intent to deprive the owner of the use or benefit permanently or temporarily and to convert it to one’s own use or the use of another.” That instruction was not given, and a jury reluctantly convicted Moore and Mansell after deliberating for longer than the entire trial, sending out seven notes to the judge, and nearly deadlocking.
The Eleventh Circuit Court of Appeals reluctantly affirmed, holding that the statute’s definition of stealing does not require evidence that the defendant “carried away” property for his “own use or the use of another.” Judge Barbara Lagoa—herself a former federal prosecutor—castigated the Assistant United States Attorney by name in her concurrence for “taking a page out of Inspector Javert’s playbook.” She noted that Moore and Mansell “never sought to derive any benefit from their conduct” and have been branded as lifelong felons “for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in.”
In December, the Cato Institute filed an amicus brief urging the Eleventh Circuit to grant en banc review and reverse the convictions. The brief explains that for centuries, the greatest protection against unjust convictions and punishments was the institution of jury independence, including so-called “jury nullification.” But because modern judges have effectively nullified the power to nullify, it is all the more important that other defendant-protecting doctrines—such as the rule of lenity—be applied robustly.
At common law, prosecutors were required to prove that a defendant had a guilty mind—meaning that the accused knew or intended to commit a crime. This is known as mens rea. Dispensing with the mens rea requirement has led to the criminalization of totally innocent conduct—destroying the lives of well-meaning people like John Moore and Tanner Mansell, who genuinely believed they were doing the right thing.
Members of Congress have long understood the need for mens rea reform. Senators Mike Lee, Rand Paul, and Thom Tillis have championed legislation that would require prosecutors to show that the accused didn’t just commit a “criminal” act but had a guilty mind. If reintroduced and enacted, the law would establish a default setting requiring prosecutors to prove intent—even in instances where the law at issue lacks an intent element. Had this law been in effect at the time, it’s doubtful Moore and Mansell would have been convicted.
Because the jury instructions in this case reflected a broad conception of the word “steal” rather than a narrow one, Moore and Mansell are entitled to a new trial with a properly instructed jury. Unfortunately, the Eleventh Circuit recently denied their petition for en banc review, so they will be asking the Supreme Court to hear their case.