Eleventh Circuit Court of Appeals - Published Opinions

Friday, February 22, 2013

Izurieta: Rule of Lenity precludes conviction based on arguably non-criminal regulation

In U.S. v. Izurieta, No. 11-13585 (Feb. 22, 2013), the Court, having spotted the issue sua sponte and asked the parties to brief it after oral argument, held that an indictment charging unlawful importation of foods into the United States, in violation of 18 U.S.C. §§ 545 and 371, failed to state an offense. The Court therefore vacated all convictions and sentences.

The Court first rejected the government’s argument that the Court could not reach the issue, pointing out that the issue was jurisdictional, and that the Court could reach jurisdictional issues until the mandate issued.

The Court noted that the charged offense involved the violation not of a statute, but of a regulation issued by the Food and Drug Administration, 19 C.F.R. § 141.113(c). This regulation did not reference any criminal statute, but only specified liquidated damages, not criminal punishment, for failure to comply. Applying the rule of lenity, the Court found that 18 U.S.C. § 545 was “grievously ambiguous” regarding whether it criminalized violation of 19 C.F.R. § 141.113(c). The Court found that the conspiracy count was similarly infirm, because the “vast majority” of the allegations of this Court alleged not a violation of a separate statute, but of the same C.F.R. regulations.