Originally published by Jack Townsend.
Today’s case, United States v. Hastie, ___ F.3d ___, 2017 U.S. App. LEXIS 7237 (11th Cir. 2017), here, is a criminal case, but is not a tax case. I offer it because the most interesting holding in the case involved a prior tax crimes case and the setting of when a jury instruction might turn into a directed verdict.
The Driver’s Privacy Protection Act (“DPPA), 18 U.S.C. § 2721(a), here, provides that “A state department of motor vehicles and any officer, employee or contractor thereof, shall not knowingly disclose “personal information,” which is defined as “information that identifies an individual.”
Hastie was the License Commissioner of Mobile County, Alabama. The License Commissions issues driver’s licenses and auto titles for the county. The Commission maintains a website for online transactions. Use of the website requires the user to provide his or her email addresses. In addition, the tellers in the office are instructed to obtain email addresses for in-office transactions. Both the website and the policy manual for the Commission advise about the DPPA.
Hastie, asked the Commission’s information technology guy to do a mass email with her endorsement for mayor. That, of course, was not Commission business. He refused to do so, but did provide her a flash drive with the email addresses. Hastie provides the email address to the candidate’s campaign and the campaign emailed the endorsement.
Hastie was indicted for 18 counts. Count 17 charged violation of the DPPA. (I don’t know the other counts.) The statute defines “personal information” as (18 U.S.C. § 2725(3)):
information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.
Note that the statutory definition does not specify email addresses as personal information. But, the district court instructed the jury as follows (bold-face supplied by JAT):
The term “personal information” means information that identifies an individual, including an individual’s E-mail address, photographs, Social Security number, driver’s license, name, address, telephone number, medical or disability information. Personal information does not include information on vehicular accidents, driving violations, and a driver’s status.
The Jury then asked the judge whether “whether it had to follow the definition of “personal information” found in the DPPA or the definition set forth in the jury instructions.” This interesting fact is found in the dissent’s opinion in a footnote (fn. 3 on p. 29, the end of the dissenting opinion). There is no indication of the judge’s answer to the jury. (I am surprised that this fact was not mentioned by the majority and more prominently by the dissent.)
After first determining that the License Commission was a “State Department of Motor Vehicles” as used in the statute, the Court turned to the issue of whether email addresses are “personal information” under the statute. In fairly straight-forward statutory interpretation, the Court held that “personal information” did or at least could include emails. I urge readers to review that portion of the decision (pp. 9-15).
The Court then turned to the subtler issue of whether the wording of the specific instruction improperly directed a verdict on that question. On that issue, the majority and the dissent turned to a tax case, United States v. Goetz, 746 F.2d 705 (11th Cir. 1984), here, a tax case involving whether a crank return was a return requiring that it not be a return to support a failure to file conviction. The majority discussed that issue as follows:
Finally, because the district court accurately stated the law, it did not err in instructing the jury that “[t]he term ‘personal information’ means information that identifies an individual, including an individual’s email address.” Although perhaps not “all email addresses are ‘personal information,'” see Dissenting Op. at 27-28, the district court accurately stated the law when it said that personal information includes an individual’s email address, in the same way that it includes an individual’s telephone number or physical address. Hastie argues that “[m]inimally,” the jury should have been allowed to determine whether “personal information” includes email addresses “as a factual question.” But the definition of “personal information” is a matter of statutory interpretation, which makes it a question of law. See United States v. Wilson, 788 F.3d 1298, 1310 (11th Cir. 2015). That Hastie disagrees with our definition of “personal information” does not remove the authority of the district court to instruct the jury on the law.
The dissent correctly states that a district court cannot direct a verdict on an element of the offense, Dissenting Op. at 21, but the dissent misapprehends the distinction between an instruction that defines an element and one that directs a verdict on that element. In United States v. Goetz, 746 F.2d 705 (11th Cir. 1984), we explained that the district court “correctly ruled that, as a matter of law, alleged tax returns which do not contain any financial information are not ‘returns’ within the meaning of [the statute].” Id. at 707. A definition that stopped there would have been a permissible statement of the law to the jury. United States v. Grote, 632 F.2d 387, 391 (5th Cir. 1980) (holding that a jury instruction providing the same definition of tax returns did not direct the verdict, but “merely instructed the jury, in light of the evidence that had been introduced at trial, how it might find the existence of the second element of the offense charged”). But the district court in Goetz “went on to determine that the documents filed by the defendants did not contain any financial information, and concluded that, as a matter of law, these documents were not returns.” 746 F.2d at 708 (emphases added). The district court “essen[tially] . . . directed a verdict” on that element by conclusively applying the definition to the facts, id., instead of leaving the jury the “responsibility to find the . . . element of the offense . . . under the charge as given.” Grote, 632 F.2d at 391. We identified the same error in Roe v. United States, 287 F.2d 435 (5th Cir. 1961). The district court “should have told the jury that to convict it must first find that, within the definition of an investment contract given by the Court, these transactions were an investment contract.” Id. at 441 (emphasis added). The instruction that “assignments of oil and gas leases coupled with collateral agreements . . . are investment contracts” was permissible, but the instruction that “the investment contracts described in the first count of this indictment come within the definition” was not. Id. at 440 n.8 (emphasis added). The Fifth Circuit has since explained that “[i]t is the judge’s duty to instruct the jury concerning th[e] definition [of a security]” and “[o]f course, the [*19] question whether a generic type of document, such as a traveler’s check or an equipment lease, may come within the reach of the statute’s prohibition is one of law,” but “[w]hether a particular piece of paper meets that definition . . . is for the jury to decide.” United States v. Johnson, 718 F.2d 1317, 1321 n.13 (5th Cir. 1983) (en banc). Our dissenting colleague rejects our reading of these decisions, but fails to explain how they do not make the very distinctions explained above.
The district court would have erred if it had instructed the jury that the emails provided by Ms. Hastie constitute “personal information,” but the district court did not do so. The district court instead provided the jury a definition at a higher level of generality when it explained that “‘personal information’ means information that identifies an individual, including an individual’s E-mail address.” Trial Tr. Day 7, 1596:24-1597:5, June 3, 2015. The dissent asserts that these two instructions are “qualitatively the same,” Dissenting Op. at 27, but our precedents maintain that they are materially and legally different, see Grote, 632 F.2d at 391. Because a district court may instruct a jury that a generic kind of document is not a return, see Goetz, 746 F.2d at 707-08, and that a generic kind of transaction is an investment [*20] contract, see Roe, 287 F.2d at 441, the district court did not err in instructing the jury that a generic identifier (a personal email address) is personal information. The district court did not “appl[y] the facts to the law, leaving nothing for the jury to determine,” Goetz, 746 F.2d at 709, because the jury was still responsible for deciding whether Hastie shared information that met that legal definition. It is irrelevant that this particular decision was simple; the jury applies the law to the facts “no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993).
Contrary to the dissent’s assertion, Dissenting Op. at 28, our ruling also does not conflict with the decision to allow the jury to decide whether Hastie was an “officer” or “employee” of a “State department of motor vehicles,” 18 U.S.C. § 2721(a). In its discretion, the district court perhaps could have defined that statutory language to include county officials who act on behalf of the state, but the district court could not have determined that Hastie was such an officer without running afoul of the Sixth Amendment. Although there may arise situations where a purported “definition” is incorrect or so specific that it essentially directs the verdict, that problem is not present here. Because the generic definition of “personal information” given by the district court accurately stated the law, the district court did not err in its instructions to the jury.
So, let’s see if the majority addressed the dissent’s concerns. Here are key excerpts from the dissent:
Because email addresses are not included in the DPPA’s definition of “personal information,” see 18 U.S.C. § 2725(3) (defining “personal information” as “information that identifies an individual,” and providing various examples), Ms. Hastie asked the district court to give the jury the statutory definition of “personal information” and allow it to decide whether email addresses constitute “information that identifies an individual.” See D.E. 294 at 136-37. The district court refused, and instead told the jury that, as a matter of law, the term “personal information” includes email addresses. See D.E. 295 at 129-30.
* * * *
The majority holds that the district court did not err in instructing the jury that the term “personal information” includes email addresses because the definition of “personal information” is a matter of statutory interpretation. See Maj. Op. at 15. Although it is true that the construction of a statutory term is for a court to resolve, the majority’s rationale is too simplistic and does not account for Eleventh Circuit precedent.
* * * *
A criminal conviction must “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995). That means that a district court cannot—no matter how overwhelming (or undisputed) the evidence—direct a verdict by deciding a contested issue on an element of the charged offense. See Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (explaining that the Sixth Amendment right to trial by jury “includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty'”).
The district court here, through its jury instructions, altered Congress’ definition under § 2725(3) and prevented the jury from deciding a critical issue: whether the email addresses provided by Ms. Hastie constitute “personal information” under the DPPA. And that, I believe, violated the Sixth Amendment. See, e.g., Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967) (“An instruction deciding a material fact issue as a matter of law adversely to the accused is regarded as a partial instructed verdict of guilty [that is] prohibited.”).
* * * *
Whether email addresses are “personal information” may properly be characterized as a mixed question of law and fact. But juries in criminal cases also get to decide mixed questions when they concern an element of the offense at issue. See Gaudin, 515 U.S. at 510-15 (holding that the question of “materiality,” in a false statement prosecution under 18 U.S.C. § 1001, must be submitted to the jury even though it is a mixed question of law and fact). After all, “the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” Id. at 514. See also Sparf v. United States, 156 U.S. 51, 106, 15 S. Ct. 273, 39 L. Ed. 343 (1895) (“the jury [is] to apply the law as . . . declared to the facts as ascertained by them”).
If the government presents evidence X at trial to establish an element of the offense, and the defendant on appeal argues that evidence X is insufficient to support his conviction, a reviewing court has to determine whether evidence X satisfies the statutory element, and that analysis may entail interpretation of a term in the statute. That is the sort of sufficiency analysis we conducted in Wilson, 788 F.3d at 1310-11, and in many other cases like it. See, e.g., United States v. Ross, 458 F.2d 1144, 1145-46 (5th Cir. 1972). But the need to construe a statute on appeal to conduct sufficiency review is not a license for a district court to tell the jury at trial that evidence X, as a matter of law, satisfies the contested statutory element. The “jury’s duty to apply the law to the facts . . . implies the application of a general standard to the specific . . . facts as found by the jury.” Holland v. United States, 348 U.S. 121, 141, 75 S. Ct. 127, 99 L. Ed. 150, 1954-2 C.B. 215 (1954).
One of our cases, United States v. Goetz, 746 F.2d 705 (11th Cir. 1984), properly illustrates these principles. Goetz involved a prosecution under 26 U.S.C. § 7203 for willful failure to file federal income tax returns. Because one of the elements of a § 7203 offense is the failure to file a return, the defendants wanted the jury to decide whether certain documents they had submitted to the IRS—tax forms containing the words “object self incrimination” in each space requesting income information—constituted “returns.” See id. at 707. The district court ruled, as a matter of law, that the documents were not “returns” within the meaning of § 7203, and so instructed the jury. See id. The jury found the defendants guilty, but we reversed their convictions on appeal.
Although we agreed with the district court that the documents submitted by the defendants were not “returns” as a matter of law (so that the defendants could be properly convicted under § 7203 if the jury credited the government’s evidence), we held that the jury should have been allowed to decide, in the first instance, whether the forms the defendants submitted were “returns”:
The [district] court correctly ruled that, as a matter of law, alleged tax returns which do not contain any financial information are not ‘returns’ within the meaning of [§] 7203. The court, however, went on to determine that the documents filed by the defendants did not contain any financial information, and concluded that, as a matter of law, these documents were not returns. In doing so, the lower court applied facts to the law, thus invading the province of the jury. In essence, the court directed a verdict as to one of the three elements of the alleged offense: failure to file a return.
Id. at 707-08. See also id. at 709-10 (“[T]he [district court] applied the facts to the law, leaving nothing for the jury to determine . . . . We conclude that there was reversible error in directing the jury that the documents filed by the defendants were not returns.”).
Another of our cases, Roe v. United States, 287 F.2d 435 (5th Cir. 1961), is in line with Goetz. The defendant in Roe was convicted of selling and delivering securities without prior registration with the Securities and Exchange Commission. The district court instructed the jury that certain oil leases sold by the defendant were “investment contracts,” and therefore “securities,” within the meaning of the federal statute at issue. See id. at 437-38. We agreed with the district court that the leases, if proven, were “securities” under federal law, but held that the district court’s instruction constituted reversible error:
Thus we determine that, as a matter of law, the evidence of these transactions, if credited, would constitute the sale or delivery of an “investment contract,” hence a “security” thereby requiring registration with the SEC. But the if in “if credited” [*28] is a big one. By its very nature, it is the peculiar facts of the setting which turns the offer from a mere sale of property into a sale of a security. That means that the trier of fact, here a jury, must determine the issue. . . . [N]o fact, not even an undisputed fact, may be determined by the [j]udge. The plea of not guilty puts all in issue, even the most patent truths. In our federal system, the [t]rial [c]ourt may never instruct a verdict either in whole or in part.
Id. at 440.
In my view, Goetz and Roe require that we grant Ms. Hastie a new trial. Telling a jury that all email addresses categorically constitute “personal information” (what happened here) is no different than telling a jury that certain documents filed with the IRS do not constitute “returns” (what happened in Goetz) or that certain oil leases constitute “investment contracts” and, therefore, “securities” (what happened in Roe). See also Carothers v. United States, 161 F.2d 718, 722 (5th Cir. 1947) (holding, in a prosecution for selling services at prices above a ceiling set by a federal official, that the district court improperly instructed the jury as to what the ceiling price was: “This assumption, that the [ceiling] price had been established as matter of law at less than the price the indictment charged the] defendant with receiving, put the [court] in the position of deciding a fact issue material to [the] defendant’s conviction, instead of submitting it to the jury for its determination, and thus deprived the defendant of his constitutional right of trial by jury.”); Brooks v. United States, 240 F.2d 905, 906 (5th Cir. 1957) (ruling, in a prosecution for perjury based on alleged false statements made under oath to an IRS agent, that the district court committed plain error in instructing the jury that the IRS agent in question was authorized to administer oaths under federal law: “[The instruction] deprived the jury of its function of determining whether or not . . . they believed beyond a reasonable doubt that [the agent] was an officer authorized to administer oaths in 1955 and thus violated appellants’ constitutional right to a trial by jury as guaranteed by the Sixth Amendment.”); Mims, 375 F.2d at 147-48 (concluding, in a prosecution for attempted bank robbery, that the district court committed plain error in instructing the jury that the evidence showed an attempt as a matter of law). n1
n1 For similar cases from other circuits, see, e.g., United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir. 1986) (holding that the district court “invaded the jury’s domain by declaring in [its] instructions to the jury that, as a matter of law, the [Cheyenne River Sioux Tribe] Telephone Authority constituted an Indian tribal organization under 18 U.S.C. § 1163”); United States v. Mentz, 840 F.2d 315, 320 (6th Cir. 1988) (“We agree with Menz that the [district court] invaded the jury’s province by instructing that body, in clear and unequivocal language, that the banks were FDIC insured at the time the robberies occurred.”); United States v. Johnson, 718 F.2d 1317, 1318 (5th Cir. 1983) (en banc) (ruling that the district court erred in instructing the jury that a particular document was a “security” as a matter of law, because “it is the jury’s exclusive province to apply the law to the facts and determine whether the document is a security”). There is one unpublished case that employs the majority’s rationale, but that case—like the majority here—does not cite any Sixth Amendment precedent to support its ruling. See United States v. Franklin, 298 F. App’x 477, 478-79 (6th Cir. 2008) (holding, in a prosecution for knowingly using a destructive device in furtherance of a crime of violence, that the district court did not err in instructing the jury “that, as a matter of law, a Molotov cocktail is a ‘destructive device'”). Cf. United States v. Grote, 632 F.2d 387, 391 (5th Cir. 1980) (approving instruction telling the jury that “a taxpayer’s return which does not contain financial information, enabling the [IRS] to determine the party’s tax liability, if any, is not a return”).
The majority says that Ms. Hastie’s situation is distinguishable from Goetz and Roe because the district court here simply provided a definition of “personal information” at a “higher level of generality” that encompassed email addresses, rather than instructing the jury that “the emails provided by Ms. Hastie constitute ‘personal information.'” See Maj. Op. at 17. I disagree.
The district court not only gave the jury a generic definition of “personal information”—”information that identifies an individual,” D.E. 295 at 129—but it also told the jury in no uncertain terms that email addresses—the very things Ms. Hastie was accused of distributing—categorically constituted “personal information.” Because we “generally presume that jurors follow their instructions,” Penry v. Johnson, 532 U.S. 782, 799, 121 S. Ct. 1910, 150 L. Ed. 2d 9 (2001), the jury here was left with “nothing . . . to determine,” Goetz, 746 F.2d at 709, when it came to applying the law (the definition of “personal information”) to the facts (the email addresses in question).
“What [a court] is forbidden to do directly, [it] may not do by indirection.” Horning v. District of Columbia, 254 U.S. 135, 139, 41 S. Ct. 53, 65 L. Ed. 185 (1920) (Brandeis, J., dissenting). Telling the jury, without any limitation or room for debate, that email addresses constitute “personal information” as a matter of law is qualitatively the same as instructing the jury that the email addresses distributed by Ms. Hastie constitute “personal information.” In other words, if all email addresses are “personal information,” then the email addresses provided by Ms. Hastie necessarily are “personal information” too. n2
n2 In a way, the district court’s instruction acted as a mandatory inference, which is also constitutionally problematic. See, e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 446, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978) (explaining how a mandatory inference “invade[s] [the jury’s] factfinding function”); United States v. Cochran, 683 F.3d 1314, 1320 (11th Cir. 2012) (“we disapprove of a jury instruction that invades the jury’s province by implicitly mandating an inference”).
Notably, the district court here let the jury decide whether Ms. Hastie—the Mobile County License Commissioner—was an “officer” or “employee” of a “State department of motor vehicles” under § 2721(a)(1). See D.E. 295 at 129. If the jury was allowed to decide that issue, which went to a different element of the DPPA offense, how could it be precluded from deciding whether email addresses constitute “personal information” under § 2725(3)? I cannot think of a good reason, much less a valid constitutional one.
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