Pugh: Finding 18 U.S.C. § 231(a)(3) Facially Constitutional

In United States v. Pugh, No. 21-13136 (Jan. 18, 2024) (Lagoa, Brasher, Boulee (N.D. Ga.)), the Court affirmed Ms. Pugh's conviction.  

The Court addressed an issue of first impression regarding the constitutionality of 18 U.S.C. § 231(a)(3), which prohibits impeding law enforcement officers during a civil disorder affecting interstate commerce.  It was alleged that during a protest in Mobile, Alabama, Ms. Pugh shattered the window of a police car that was blocking protestors from walking on the interstate.  Ms. Pugh moved to dismiss the indictment, arguing that § 231(a)(3) is facially unconstitutional because it: (1) exceeds Congress’s power to legislate under the Commerce Clause, (2) is a substantially overbroad regulation of speech and expressive conduct, activities protected by the First Amendment, (3) is a content-based restriction of expressive activities in violation of the First Amendment, and (4) fails to provide fair notice and encourages arbitrary and discriminatory enforcement, in violation of the Fifth Amendment’s Due Process Clause. 

With regard to Ms. Pugh's first argument--that § 231(a)(3) is unconstitutional because it exceeds Congress's power under the Commerce Clause--the Court disagreed because the statute's jurisdictional element--the requirement that the civil disorder “in any way or degree obstruct[], delay[], or adversely affect[] commerce”--is enough to limit the statute’s scope to constitutional applications.  If a criminal statute contains a jurisdictional element that limits the statute to constitutional applications, that jurisdictional element immunizes the statute from a facial constitutional attack.  Ms. Pugh had argued that the criminal act committed was too removed from any connection to commerce, but the Court, while acknowledging that argument to be a strong one, found that the jurisdictional element of interstate commerce need not link directly to the criminalized act itself as long as the object of the criminal act is sufficiently connected to interstate commerce.     

With regard to Ms. Pugh's second argument--that §231(a)(3) violates the First Amendment because it broadly prohibits protected speech and expressive conduct--the Court held that the statute does not affect must speech at all.  That is, although “interfere,” by itself, could include speech, it is best read in § 231(a)(3) alongside “obstruct” and “impede” as prohibiting someone from hindering a law enforcement officer or fireman with more than mere words.  Here, it was merely hypothetical that § 231(a)(3) could be enforced against speech.  And the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.  The Court note that it need not decide today whether the statute might prohibit certain kinds of expressive activities that have the effect of blocking police officers from quieting a riot—such as directing others to riot.   

With regard to Ms. Pugh's third argument--that the statute on its face is a content-based restriction of activities protected by the First Amendment--the Court held that § 231(a)(3) is not a content-based regulation of speech.  If it affects speech at all, § 231(a)(3) is content-neutral.  Because it applies to “any act to obstruct, impede, or interfere with any fireman or law enforcement officer” performing official duties “incident to and during the commission of a civil disorder” affecting commerce or a federally protected function, it does not draw distinctions based on the message conveyed by the relevant act.  

Finally, with regard to Ms. Pugh's fourth argument--that § 231(a)(3) violates the Fifth Amendment’s Due Process Clause because it is vague on its face--the Court disagreed.  Here, because Ms. Pugh allegedly engaged in conduct clearly proscribed by the statute, she cannot complain of the vagueness of the law as applied to the conduct of others.     

Gatlin: Reversing Witness Tampering Conviction

In United States v. Gatlin, No. 20-14149 (Jan. 5, 2024) (Jordan, Luck, Lagoa), the Court reversed Mr. Gatlin's conviction and sentence as to witness tampering, but affirmed his sex trafficking of a minor and production of child pornography convictions and sentences, as well as the restitution order.  

Mr. Gatlin appealed his convictions and sentences for sex trafficking of a minor (Count 1), production of child pornography (Count 2), and witness tampering (Count 3).    

On appeal, Mr. Gatlin argued first that the evidence was insufficient as to all counts.  The Court disagreed with regard to Count 1, finding the evidence sufficient.  With regard to Count 2--production of child pornography--the Court disagreed with Mr. Gatlin's argument that § 2251 requires a specific intent to produce child pornography and that child pornography produced incidentally to a sexual encounter is insufficient.  The Court held that specific intent does not require that the defendant be single-minded in his purpose--it was enough for the government to show that making explicit photographs was a purpose for engaging in sexual activity with the victim.  With regard to Count 3--witness tampering--the Court agreed with Mr. Gatlin that the evidence was insufficient as to intent because he asked the victim to lie only to his public defender, not a federal officer.  The Court concluded that the evidence presented by the government established only a remote, outlandish, or simply hypothetical possibility that the victim's recantation statements would reach federal officers.  As such, no rational trier of fact could have found the federal nexus element to be met.  

Mr. Gatlin next argued that the court's direction to the jury to continue deliberating after returning a verdict as to Count 1 was improper.  With regard to Count 1, the court instructed the jurors that to find Mr. Gatlin guilty of sex trafficking, they had to find that he either acted (1) by means of force, threats of force, or coercion; or (2) in reckless disregard of the fact that the victim was a minor.  The jury received a general verdict form a well as an interrogatory verdict form, which first asked if Mr. Gatlin was guilty and, if so, whether it was by use of force or by reckless disregard for the fact that the victim was a minor.  The jury selected "guilty," but did not find either of the conditions necessary to trigger liability.  As a result, defense counsel asked the district court to direct a verdict of not guilty as to Count 1, which the court declined.  Instead, reasoning that the jury had returned an inconsistent verdict and the verdict had not been discharged, the district court clarified the instructions for the jury and directed them to continue deliberating.  After further deliberations, the jury found Mr. Gatlin guilty under the second condition.

The Court disagreed with Mr. Gatlin's arguments.  First, the Court held that the district court's actions did not run afoul of the Supreme Court's precedent on inconsistent verdicts in United States v. Powell, finding that the issue here was distinct because the inconsistency existed as to just one count (not between counts).  Instead, the Court analogized to a situation addressed by then-Judge Gorsuch in United States v. Shippley, noting that directing the jury to continue deliberations under these circumstances was not error.  Here, the district court had not accepted the jury's verdict and, as a result, the verdict was not final.  Additionally, asking the court to enter a directed verdict of not guilty would have required the court to overlook the jury's unanimous finding of guilt as to Count 1 on the general verdict form.  And the inverse--simply accepting the jury's general finding of guilt--was equally untenable.  It was metaphysically impossible to give effect to the jury's verdict.  The Court noted in a footnote, however, that it was not faced with a situation where the district court accepted an internally inconsistent verdict, which, according to the Court's sister circuits, would have triggered jeopardy and required a judgment of acquittal. 

Second, the Court found that the district court's decision was not plainly erroneous under the 5th (due process and double jeopardy) and 6th Amendments (right to a fair trial).  The Court found no plain error relating to double jeopardy because the verdict was not final.  The Court also found no plain error in the district court's giving of further instruction to the jury, finding them not to be impermissibly coercive.

Finally, the Court affirmed Mr. Gatlin's sentence.  Mr. Gatlin first challenged the custody, care, or supervisory control enhancement.  The Court found the enhancement appropriate, finding “custody, care, or supervisory control" to be plain, i.e., the plain meaning of stating that a child is in a person’s care is simply to say the person is responsible for looking after the child’s wellbeing.  Here, Mr. Gatlin occupied a guardian-like position over the victim.  Mr. Gatlin next challenged the repeat-offender enhancement.  The Court disagreed.  Third, the Court found Mr. Gatlin's life sentence to be reasonable.  Fourth, the Court upheld the restitution order, finding that it did not violate Mr. Gatlin's 6th Amendment rights.  

Judge Jordan concurred in part and dissented in part.  With regard to the inconsistent jury verdict issue, Judge Jordan emphasized that due to the district court’s non-acceptance of the inconsistent jury verdict on Count 1 the Court was not faced with a situation where a final jury verdict contains answers to special interrogatories that preclude a general finding of guilt.  Had the district court accepted the jury’s inconsistent verdict, he does not think Mr. Gatlin’s conviction on Count 1 could stand.

With regard to the production count, Judge Jordan dissented, believing the evidence to be insufficient to support a guilty verdict.  In his view, the evidence showed only that Mr. Gatlin took a single "live" photo during sexual intercourse with the victim, not that he had sexual intercourse with her for the purpose of producing child pornography.  He expressed a concern that in so affirming the conviction here, the Court was coming close to making § 2251(a) a strict liability statute.       

Judge Luck also concurred in part and dissented in part.  He would have affirmed Mr. Gatlin's witness tampering conviction, finding the evidence sufficient.