On a Monday in August 2020, Camryn Kuehl and her family embarked on a snorkeling trip in Jupiter, Florida, on a boat operated by a company that specializes in shark encounters. During the trip, the boat’s crew, John R. Moore Jr. and Tanner Mansell, spotted what they described to the Kuehls as an “illegal longline fishing line” attached to a buoy. With the Kuehls’ help, Moore and Mansell hauled in the line and freed the 19 sharks caught on it—a rescue operation they encouraged the Kuehls to document with their cellphones. Moore called Florida Fish and Wildlife Officer Barry Partelow to report the incident.
As Partelow ultimately discovered, Moore and Mansell had made a mistake. The line had been set by Scott Taylor, a seafood distributor whom the National Oceanic and Atmospheric Administration had authorized to catch sharks for research purposes. Although Moore and Mansell clearly thought they were doing good by releasing illegally ensnared sharks, they were nevertheless convicted of theft at sea, a federal felony punishable by up to five years in prison. Prosecutors alleged that Moore and Mansell had stolen Taylor’s fishing gear, which they left on the dock, where marina employees discarded it in a dumpster.
In addition to a year of probation, Moore and Mansell were saddled with felony convictions that trigger lifelong disabilities, including barriers to employment and loss of their Second Amendment rights. They challenged their convictions on the grounds that the jury instructions included a broad, counterintuitive definition of stealing that did not require an intent to use Taylor’s gear for their own benefit. Last September, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit rejected that challenge. Moore and Mansell are now asking the full appeals court to reverse that decision and correct the flagrant injustice of treating them as federal felons based on an honest, well-intentioned error.
Moore and Mansell were convicted under 18 USC 661, which applies to someone who “takes and carries away, with intent to steal or purloin, any personal property of another” within “the special maritime and territorial jurisdiction of the United States.” During their trial, they asked U.S. District Judge Donald Middlebrooks to instruct the jury that stealing property means wrongfully taking it “with 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.” After the prosecution objected to including a conversion element, Middlebrooks omitted it, although he did tell the jury that the defendants maintained they had “removed property without the bad purpose to disobey or disregard the law and therefore did not act with the intent to steal or purloin.”
The jurors, who sent the judge half a dozen notes while deliberating for two days (longer than it had taken to present the evidence against Moore and Mansell), struggled to reach a verdict. When they told Middlebrooks they had been unable to reach a unanimous decision, he gave them an Allen charge, encouraging them to continue deliberating and saying they should be open to changing their positions, provided they could do so “without violating your individual judgment and conscience.” After sending one more note asking whether they should consider any other defense theories, the jurors found Moore and Mansell guilty of one charge each.
In an opinion by Judge Charles Wilson, the 11th Circuit panel ruled that Middlebrooks had been right to conclude, based on the relevant precedents, that Section 661’s definition of stealing does not require evidence that the defendant “carrie[d] away” property for his “own use or the use of another.” But in a concurring opinion, Judge Barbara Lagoa, joined by Judge Britt Grant, highlighted the perverse consequences of that reading and harshly criticized Assistant U.S. Attorney Thomas Watts-FitzGerald for his “imprudent exercise of discretion” in choosing to prosecute the case.
Lagoa noted that Moore and Mansell had openly stated their motivation in freeing the sharks, had enlisted their customers to help and to take pictures while doing so, had reported the incident to the relevant law enforcement agency, and had “returned the gear to the marina dock as instructed.” Kuehl, for her part, “thought [they] were doing a great thing,” and she “shared pictures on social media reporting as much to her friends.” Yet “for reasons that defy understanding,” Lagoa said, Watts-FitzgGerald “learned of these facts and—taking a page out of Inspector Javert’s playbook—brought the matter to a grand jury to secure an indictment for a charge that carried up to five years in prison.”
Despite evidence that “plainly suggests a good-faith mistake on Moore and Mansell’s part,” Lagoa wrote, Watts-FitzGerald “determined that this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions, rather than imposition of a civil fine.” Explaining that decision during oral argument last August, the government’s lawyer likened the case to car theft on federal property. “If someone steals a car on a military base,” she said, “the proper response isn’t, well, pay restitution for that. That’s a crime.” Grant called that “a silly example,” adding, “There’s no comparison.”
In her concurring opinion, Lagoa proposed a different analogy. “Imagine that Bob, walking along a path in a federal park, sees a man rush up to an elderly woman from behind, pull a gun from his pocket, and yell ‘Give me your purse or I’ll shoot,'” she wrote. “Bob rushes the robber, yanks the gun from his hand, and ushers the old woman out of harm’s way.”
What if “what Bob witnessed was not a genuine robbery, but a scene being acted out by some students from the local community college”? In other words, Lagoa wrote, “the robber was not a robber at all, but the elderly woman’s scene partner for drama class. Bob, of course, had no way of knowing that when he interrupted what he believed to be a violent crime.”
Under “the government’s theory in this case and applying § 661 as broadly as the government did here,” Lagoa noted, “this genuine mistake would be of no moment, because all that matters is that Bob took the ‘robber’s’ property with the intent to deprive him of it. Perhaps it would move the needle if Bob’s lawyers requested an instruction on mistake of fact, aiming to undermine the mens rea needed to convict.” But for Lagoa, the bottom line is that Bob, like Moore and Mansell, “should not be prosecuted in the first instance.”
What happens when prosecutors nevertheless defy fairness and common sense by pursuing charges in a situation like this? In a brief urging the 11th Circuit to reconsider Moore and Mansell’s case, the Cato Institute emphasizes the vital role that juries can play in correcting such injustices.
“From a purely originalist standpoint, perhaps the single greatest protection against unjust convictions and punishments was the institution of jury independence,
which included—but was by no means limited to—the power to acquit against the
evidence,” writes Clark Neily, Cato’s senior vice president for legal studies. “At the Founding, criminal jurors were not relegated to the role of mere fact-finders, as they are today. Indeed, the conception of criminal juries as having no proper role in assessing the wisdom, fairness, or legitimacy of a given prosecution is a more recent invention that early American lawyers and jurists would rightly have condemned as antithetical to centuries of common-law understanding and practice.”
Neily notes that “the jury in this case appeared reluctant to convict, and only did
so after sending out seven notes and receiving an Allen charge from the trial judge.” If the jury instructions had “better embodied the Supreme Court’s directive that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,'” he argues, “the verdict would likely have obviated this appeal by more accurately reflecting how ordinary people understand the word ‘steal’ in the context of potentially ruinous felony charges.”
Although “the spectacle of an imperious national government prosecuting virtuous
citizens for activities within its ‘special maritime jurisdiction’ would have been entirely familiar to the Founders,” Neily writes, “they would likely have been dismayed by the identity of that government and by the miscarriage of justice that occurred here. It is
highly doubtful that a Founding-era jury, fully cognizant of its historic powers and
duties, would have branded John Moore and Tanner Mansell lifelong felons for their
misguided attempt to fulfill what they perceived to be a civic duty. The Court can still avoid that result by granting the Petition and applying a suitably restrained interpretation of the relevant statute.”
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