United States v. Moore and Mansell — An Infuriating Case of Government Overreach

This is an outrageous case of government overreach.  Every now and then I come across a case that is so galling in its arrogance and so extraordinarily unjust, I just have to remark on it.  This is one of those cases.  Seriously, were there no lifeguards on duty at the U.S. Attorney’s Office, no supervisors to pull this line prosecutor into line?  Are these really the kind of cases the Southern District of Florida believes it necessary to spend taxpayer money on? Were felony convictions in this case so necessary to preserve safety in our communities and respect for the law? Does the government simply not care about its perception in the larger community?  Even one of the panel judges felt it necessary to call out this prosecutor by name—Tom Watts Fitzgerald—in questioning why this prosecution was brought.  Pro tip:  If a judge calls you out by name in a published opinion, you need to rethink some of your professional decisions. 

So, here’s what happened — John Moore and Tanner Mansell worked for a boat company that assisted tourists in having shark encounters off the coast of Jupiter, Florida.  One day in August 2020, they took a family out to sea to snorkel with some sharks. When they were out to sea, Moore and Mansell saw a long fishing line attached to a buoy.  They brought this fishing line on board their boat. Moore and Mansell believed they discovered an illegal longline fishing line, associated with shark poaching.  There were sharks on the line.  Moore and Mansell cut the sharks free.  While Moore and Mansell were doing this, they encouraged their guests to video record what was happening.   Moore also called a wildlife officer, Barry Partelow, with the Florida Fish and Wildlife Agency and told him what they were doing. Partelow then checks out what’s going on, and he realizes that this was actually a legal endeavor.  The National Oceanic and Atmospheric Administration (NOAA) confirmed the boat that put the line out had all of its proper permits and this was part of a research project.  So, obviously, there’s been some kind of mistake here and frankly, it seems innocent enough.

But not so fast, cowboy!   The government believes there’s been a serious crime committed here!  A felony-level offense even!  Both of these seamen were charged with theft of property within special maritime jurisdiction, in violation of 18 U.S.C. §661.  This crime carries a possible prison sentence of 5 years. Moore and Mansell proceeded to trial, and after numerous notes sent to the district court judge by the jury evidencing their reluctance to convict, they were nevertheless convicted.  Moore and Mansell were both sentenced to 12 months’ probation.  They are now both convicted felons which, of course, impacts their abilities to vote, possess or own firearms, can impact professional licensing opportunities, and can impact their abilities to obtain gainful employment.  In short, felony convictions are serious matters and these two men, in perhaps a misguided attempt to thwart poaching and protect natural wildlife, now have to suffer these consequences.  

Judge Lagoa wrote a concurring opinion in this matter, expressing understandable concern about this prosecution.  He does not hold back:

John Moore Jr. and Tanner Mansell are felons because they tried to save sharks from what they believed to be an illegal poaching operation.  They are the only felons I have ever encountered, in eighteen years on the bench and three years as a federal prosecutor, who called law enforcement to report what they were seeing and what actions they were taking in real time.  They are felons who derived no benefit and in fact never sought to derive any benefit, from the conduct that now stands between them and exercising the fundamental rights from which they are disenfranchised.  What’s more, they are felons for having violated a statute that no reasonable person would understand to prohibit the conduct they engaged in . . . (emphasis in original).

For reasons that defy understanding, Assistant United States Attorney Tom Watts Fitzgerald 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. 

Another pro tip:  If a judge makes passing reference to Inspector Javert while discussing your charging decisions, you need to check yourself.  Javert, an infamous character from Victor Hugo’s novel, Les Misérables, was described by Hugo in that novel as: “[h]e would have arrested his own father if he escaped from prison and turned in his own mother for breaking parole.  And he would have done it with that sort of interior satisfaction that springs from virtue.”  This is not the kind of comparison one ought to take pride in engendering. So, it’s difficult to know how this case got this point.  Were there really no resolutions short of felony convictions for two seamen who tried to save sharks from being poached?  And how is the public supposed to take comfort that justice is being meted out with the level of professional discretion we expect from those who possess and wield enormous power?  At the end of the day, government prosecutors are responsible for ensuring, not that someone is convicted, but that justice is done.  Berger v. United States, 295 U.S. 78 (1935).  It is impossible to read this opinion and believe these convictions were the proper outcome.