Opinion

United States v. Marion Michael O'Steen

Court: Court of Appeals for the Eleventh Circuit
Filed: Apr 4, 2025
Status: Published
Nature of suit: NEW
Cited by: 0 cases
Authority: More cited than 34.7%

holding that a defendant accused of aiding and abetting in the commission of a federal oﬀense may be convicted even if the alleged principal has been acquitted of that oﬀense

How later courts described this case

holding that a defendant accused of aiding and abetting in the commission of a federal oﬀense may be convicted even if the alleged principal has been acquitted of that oﬀense
“This argument has been soundly rejected and we follow suit.”
noting that “we liberally read briefs to ascertain the issues raised on ap- peal”
“On June 19, Al Johnson [the intermediary of the victim, Charles Wood] paid Eaves [the defendant] $5,000 in cash. . . . Count [One] charged that Eaves accepted a $5,000 payment from Charles Wood.”

Written by the judges who cited it.

The opinion

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13569

____________________

UNITED STATES OF AMERICA,

Plaintiﬀ-Appellee,

versus

MARION MICHAEL O'STEEN,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:21-cr-00016-MMH-JBT-2

____________________

Before JORDAN, LAGOA, and TJOFLAT, Circuit Judges.

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2 Opinion of the Court 22-13569

TJOFLAT, Circuit Judge:

This appeal is the last chapter of a lengthy FBI investigation

of the State Attorney for the Third Judicial Circuit of Florida,1 Jef-

frey Alan Siegmeister. The investigation began in August 2018, af-

ter Andy Tong, whom Siegmeister was prosecuting for maintaining

a gambling house in violation of Florida law, 2 told the FBI that his

attorney, Marion Michael O’Steen, would have to pay Siegmeister

$50,000 for a favorable disposition of the case. The investigation

concluded in February 2021, when a Middle District of Florida

grand jury returned a twelve-count indictment against Siegmeister

and O’Steen. Siegmeister was charged in eleven counts, O’Steen in

four. Relevant here are Counts One through Four.3

1 The Third Judicial Circuit consists of seven counties: Columbia, Dixie, Ham-

ilton, Lafayette, Madison, Suwannee, and Taylor.

2 Siegmeister charged Tong and two of his associates with violating Florida

Statute § 849.01, a third-degree felony punishable by imprisonment for a term

of up to five years.

3 Not relevant are the eight counts that were lodged only against Siegmeister.

Count Five: Siegmeister conspired with a defense attorney (not O’Steen), in

violation of 18 U.S.C. § 371, to commit bribery concerning programs receiv-

ing federal funds in violation of 18 U.S.C. § 666(a)(1)(B). Count Six: Siegmeis-

ter committed the § 666(a)(1)(B) bribery oﬀense referred to in Count Five.

Counts Seven through Nine: Siegmeister defrauded an elderly man with phys-

ical and mental deﬁciencies for whom he had been appointed guardian of

Coca-Cola common stock worth $664,751, in violation of 18 U.S.C. § 1343.

Siegmeister used part of the proceeds of the sale of the stock to purchase a

70-acre farm on which he raised Braford bulls for breeding. Counts Ten

through Twelve: Siegmeister ﬁled false federal income tax returns for 2015,

2016, and 2017, in violation of 26 U.S.C. § 7206(1).

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22-13569 Opinion of the Court 3

Count One alleged that Siegmeister and O’Steen conspired

from January 16, 2013, through December 19, 2019, to engage in

bribery and extortion in violation of Florida law. 4 Count Two al-

leged that they conspired from August 9, 2018, through May 16,

2019, to obtain $60,000 from Andy Tong, an O’Steen client,5

through extortion and extortion under color of oﬃcial right in vi-

olation of the Hobbs Act. 6 Count Three alleged that Siegmeister

and O’Steen, aiding and abetting each other, achieved the object of

the Count Two conspiracy: they obtained $60,000 from Andy Tong

4 Count One alleged that the defendants conspired in violation of 18 U.S.C.

§ 371 to violate 18 U.S.C. § 1952(a)(3), prohibiting interstate and foreign travel

or transportation in aid of racketeering enterprises, by engaging in bribery and

extortion in violation of Florida Statutes §§ 838.015 (bribery) and 836.05 (ex-

tortion).

5 The indictment alleged that the defendants “obtained property not due de-

fendants from Client B.” The property was $60,000, and Client B was Andy

Tong.

6 18 U.S.C. § 1951, commonly referred to as the Hobbs Act, states in relevant

part:

(a) Whoever in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in

commerce, by . . . extortion . . . shall be fined under this title

or imprisoned not more than twenty years, or both.

(b) As used in this section—

...

(2) The term “extortion” means the obtaining of prop-

erty from another, with his consent, [1] induced by

wrongful use of actual or threatened force, violence,

or fear, or [2] under color of oﬃcial right.

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4 Opinion of the Court 22-13569

through extortion and extortion under color of oﬃcial right in vi-

olation of the Hobbs Act. 7 Count Four, brought against O’Steen

alone, alleged that on or about August 23, 2018, he failed to ﬁle

Form 8300 with the Financial Crimes Enforcement Network

within ﬁfteen days after he received more than $10,000 in one busi-

ness transaction.8

At arraignment, the defendants entered pleas of not guilty

as charged. Over a year later, Siegmeister entered into a plea agree-

ment with the Government and pled guilty to Counts One, Two,

Seven and Ten of the indictment. 9 On June 6, 2022, O’Steen stood

trial on Counts One through Four. Siegmeister testiﬁed for the

7 Count Three alleged violations of 18 U.S.C. §§ 1951(a) and 2. Section 2 states

that “[w]hoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as a

principal.” As in Count Two, Count Three alleged that the defendants “ob-

tained property not due defendants from Client B.” We treat Counts Two and

Three throughout as alleging that the defendants obtained $60,000 from Andy

Tong.

8 See 31 U.S.C. §§ 5331 (reports relating to coins and currency received in non-

financial trade or business) and 5322 (criminal penalties).

9 Siegmeister remained subject to prosecution on the remaining counts of the

indictment, Counts Three (from which he had been severed), Five, Six, Eight,

Nine, Eleven and Twelve. The plea agreement called for the dismissal of those

counts at Siegmeister’s sentencing provided that Siegmeister satisfactorily co-

operated with the Government and, among other things, testified as a prose-

cution witness at O’Steen’s trial.

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22-13569 Opinion of the Court 5

prosecution. On January 15, the jury found O’Steen not guilty on

Counts One and Two and guilty on Counts Three and Four. The

District Court sentenced O’Steen to concurrent prison terms of 44

months on those counts, to be followed by a three-year period of

supervised release, and ordered him to pay a ﬁne of $45,000 and

make restitution to the United States of $60,000.

O’Steen appeals his convictions. The oﬀenses alleged in

Counts Three and Four are materially unrelated, involve diﬀerent

factual predicates, and are subject to diﬀerent standards of review.

We consider them separately.

I. The Count Three Appeal

We organize our discussion of this appeal as follows: Part A

addresses the oﬀenses Count Three presents. Part B highlights the

signiﬁcant pretrial defense motions and their dispositions. Part C

covers the trial of Count Three. Part D deals with submission of

Count Three to the jury and their verdict. Part E states the issues

on appeal. In Part F, we discuss the issues, conclude that aﬃrming

the Count Three conviction would be improper, and accordingly

set it aside.

Count Three alleged that on or about August 9, 2018,

through May 16, 2019, in violation of 18 U.S.C. §§ 1951(a) and 2,

the defendants, JEFFREY ALAN SIEGMEISTER and

MARION MICHAEL O’STEEN, aiding and abetting

each other, did knowingly obstruct, delay, and aﬀect,

and attempt to obstruct, delay, and aﬀect . . .

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6 Opinion of the Court 22-13569

commerce . . . by extortion, as such terms are de-

ﬁned in 18 U.S.C. § 1951, that is, the defendants, act-

ing in concert with one another, obtained property

[i.e., $60,000] not due defendants, from [O’Steen]

Client [Andy Tong], with [Andy Tong’s] consent, un-

der color of oﬃcial right and through fear of eco-

nomic harm.

In Count Three, the grand jury took two inconsistent, irrec-

oncilable positions, and the Government did so in the instructions

it persuaded the District Court to give to the jury. One position was

that O’Steen, as principal, obtained Tong’s $60,000 by extortion and

extortion under color of oﬃcial right, and Siegmeister, as accom-

plice, assisted O’Steen in committing the oﬀenses. The other posi-

tion was that Siegmeister, as principal, obtained Tong’s $60,000 by

both extortion and extortion under color of oﬃcial right and

O’Steen, as accomplice, assisted Siegmeister in committing the of-

fenses. This accounts for the jury’s bifurcated ﬁndings on Count

Three: O’Steen, as principal, committed or, as an accomplice, aided

and abetted Siegmeister as principal to commit, both extortion and

extortion under color of oﬃcial right.

Count Three was duplicitous in that it alleged eight separate

oﬀenses. 10 As such, it was framed in violation of Rule 8(a) of the

10 “Duplicity is the joining in a single count of two or more distinct and sepa-

rate oﬀenses.” United States v. Starks, 515 F.2d 112, 116 (3d Cir. 1975). This

“should be distinguished from multiplicity, the charging of a single oﬀense in

several counts, and from misjoinder, the inclusion in separate counts of an

indictment of oﬀenses or defendants not permitted by” Rule 8. Id. at 116 n.5;

Bins v. United States, 331 F.2d 390, 392 (5th Cir. 1964). We adhere to the analysis

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22-13569 Opinion of the Court 7

Federal Rules of Criminal Procedure. 11 The defendants could have

moved the District Court before trial pursuant to Rule

in Bins. See United States v. Schlei, 122 F.3d 944, 979 (11th Cir. 1997). “[I]t is well

settled that the test for determining whether several oﬀenses are involved is

whether identical evidence will support each of them, and if any dissimilar

facts must be proved, there is more than one oﬀense.” Bins, 331 F.2d at 393

(citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180 (1932)). Duplicity

implicates constitutional concerns. One vice of duplicity is the denial of the

defendant’s Sixth Amendment right to knowledge of the charges against him.

Under a duplicitous indictment or count, the jury will consider two crimes,

creating the risk that the jury might convict without reaching a unanimous

agreement on either crime. We would not know whether a unanimous verdict

was reached because a general jury verdict on a single count “does not reveal

whether the jury found the defendant guilty of one crime and not guilty of

the others, or guilty of all of them.” Bins, 331 F.2d at 392. Another vice con-

cerns the defendant’s Fifth Amendment protection against double jeopardy.

“[A] general verdict for a defendant on the [duplicitous] count does not reveal

whether the jury found [the defendant] not guilty of one crime or not guilty

of both.” Starks, 515 F.2d at 116. That uncertainty could prejudice the defend-

ant’s exercise of the right not to be exposed to double jeopardy. Id. This is due

to “a lack of clarity concerning the oﬀense for which he is charged or con-

victed.” United States v. Aguilar, 756 F.2d 1418, 1420 n.2 (9th Cir. 1985).

11 Rule 8(a) of the Federal Rules of Criminal Procedure, Joinder of Oﬀenses

or Defendants, states:

The indictment or information may charge a defendant in sep-

arate counts with 2 or more offenses if the offenses charged . . .

are of the same or similar character, or are based on the same

act or transaction, or are connected with or constitute parts of

a common scheme or plan.

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8 Opinion of the Court 22-13569

12(b)(3)(i)(b) 12 to enter an order requiring the Government to sepa-

rate Count Three’s oﬀenses into eight separate counts. 13 But the

defendants did not take that step, opting instead to try Count Three

as alleged. We posit what separate counts would have alleged. We

refer to the counts in bold type to avoid confusing them with the

indictment’s counts as our discussion proceeds.

• Count 1: Siegmeister obtained Tong’s money through ex-

tortion.

• Count 2: Siegmeister obtained Tong’s money by extortion

under color of oﬃcial right.

• Count 3: O’Steen obtained Tong’s money through extor-

tion.

12 Rule 12(b)(1) of the Federal Rules of Criminal Procedure states: “A party

may raise by pretrial motion any defense, objection, or request that the court

can determine without a trial on the merits.” And Rule 12(b)(3)(B)(i) states:

The following defenses, objections, and requests must be

raised by pretrial motion if the basis for the motion is then rea-

sonably available and the motion can be determined without

a trial on the merits . . . a defect in instituting the prosecution,

including . . . joining two or more offenses in the same count

(duplicity).

13 Based purely on the indictment, Count Three could be interpreted to allege

even more counts based on its “attempt” language. However, the Govern-

ment never requested that the jury be instructed on attempt theories, and no

such instruction was given by the District Court. Accordingly, here and

throughout this opinion, we treat Count Three as effectively having alleged

only the substantive offenses of extortion and extortion under color of official

right.

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22-13569 Opinion of the Court 9

• Count 4: O’Steen obtained Tong’s money by extortion un-

der color of oﬃcial right.

• Count 5: Siegmeister aided and abetted O’Steen’s extor-

tion.

• Count 6: Siegmeister aided and abetted O’Steen’s extortion

under color of oﬃcial right.

• Count 7: O’Steen aided and abetted Siegmeister’s extor-

tion.

• Count 8: O’Steen aided and abetted Siegmeister’s extortion

under color of oﬃcial right.

To ﬁnd O’Steen guilty of Count 7, the jury would have to

ﬁnd as a threshold element of the oﬀense beyond a reasonable

doubt that Siegmeister committed the Count 1 oﬀense. Similarly,

to ﬁnd O’Steen guilty of Count 8, the jury would have to ﬁnd be-

yond a reasonable doubt that Siegmeister committed the Count 2

oﬀense.

The grand jury returned the indictment in this case on Feb-

ruary 24, 2021. At his arraignment on February 26, O’Steen ap-

peared with counsel and pled guilty as charged. Siegmeister, ar-

raigned on April 22, also pled not guilty as charged. He requested

the appointment of counsel.

On December 21, 2021, the Government disclosed the re-

port of its expert witness, Scott Richardson, a Florida lawyer spe-

cializing in the practice of criminal law. As indicated in his report,

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10 Opinion of the Court 22-13569

Richardson was prepared to testify that that the $60,000 O’Steen

obtained from Andy Tong in the form of an attorney’s fee to rep-

resent him in his gambling case was excessive and contingent in vi-

olation of the Rules Regulating the Florida Bar.

On February 22, 2022, Siegmeister appeared before a magis-

trate judge and, pursuant to a plea agreement, tendered pleas of

guilty to Counts One, Two, Seven, and Ten of the indictment. The

magistrate judge found that the pleas were given knowingly and

voluntarily and were factually supported. The magistrate judge

recommended that the District Court accept the pleas.

On April 1, O’Steen moved the District Court to sever Count

Four from Counts One through Three of the indictment on the

ground that “Count Four is not of the same or similar character as

the other charged oﬀenses.” The same day, he moved the District

Court in limine to exclude under Rule 403 of the Federal Rules of

Evidence the testimony of Scott Richardson concerning the ethical

propriety of the $60,000 attorney’s fee he charged Andy Tong and

other evidence O’Steen considered impermissibly prejudicial.14

The motion stated that

[e]vidence, testimony, and argument relating to vio-

lation of the Florida Bar ethics rules . . . would not be

relevant to the criminal oﬀenses charged and would

14 Rule 403 states: “The court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wast-

ing time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

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22-13569 Opinion of the Court 11

unfairly place O’Steen’s character at issue and

thereby prejudicially deny O’Steen’s right to a fair

trial and due process of law. Admission of any such

evidence would violate Rule 403 . . . because what-

ever probative value it could have, if any, would be

substantially outweighed by the danger of unfair

prejudice to O’Steen by confusing and misleading the

jury to think that O’Steen is being charged with eth-

ical violations. Furthermore, it would paint O’Steen

as an unethical person which would cause the jury to

believe that O’Steen is inclined to participate in an ex-

tortion or bribery scheme.

On April 26, the District Court denied O’Steen’s motion to

sever Count Four from Counts One through Three. On May 10,

the District Court entered an order scheduling the trial of the in-

stant case against O’Steen to begin on June 6, 2022, with jury selec-

tion to be held before a magistrate judge on June 3.

On May 13, the District Court heard O’Steen’s Rule 403 mo-

tion in limine. At the hearing, O’Steen’s counsel elaborated on the

argument in support of his motion:

There would be the risk that the jury would confuse

an ethical violation with a criminal violation, that the

jury would commingle the two concepts, that some-

how the two are the same, when it – because it is our

position that the evidence of the ethical violation

doesn’t go to any of the elements of the crimes

charged. . . . [The jurors] are not lawyers and could

easily confuse the two.

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12 Opinion of the Court 22-13569

In response, the Government argued that Richardson’s testi-

mony was relevant because the jury needed to know that Florida

criminal defense lawyers may not use contingent fee contracts:

It is relevant because jurors may assume, you know,

from watching – we’ve all seen plaintiﬀs’ lawyers’

commercials on TV: You don’t get paid till I get paid.

. . . And the testimony that this – that contingent fees

that are dependent upon the outcome are not within

the bounds of the rules of professional conduct is rel-

evant because it goes to Mr. O’Steen’s intent to com-

mit extortion.

The District Court agreed and denied O’Steen’s motion in

limine. O’Steen’s violation of the Florida Bar’s ethics rules was “rel-

evant to the question of . . . whether the payment and the receipt

of the money was wrongful . . . for purposes of the elements of

the extortion claim as to [Tong].” The Court qualiﬁed its ruling,

however, with the statement that it would be “happy to consider

[giving] a limiting instruction at the time that evidence is pre-

sented.” 15

On May 23, the District Court accepted the guilty pleas

Siegmeister had tendered on February 22 and adjudicated him

guilty of Counts One, Two, Seven, and Ten of the indictment. On

June 6, O’Steen would stand trial alone, on Counts One through

Four.

15 During the ﬁrst day of the trial, the parties and the Court agreed on the

wording and timing of a limiting instruction.

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22-13569 Opinion of the Court 13

The trial focused on the Siegmeister-O’Steen relationship.

Siegmeister was admitted to the Florida Bar in 1994. In 2011, having

practiced successfully as a criminal defense attorney in Lake City,

the county seat of Columbia County, he decided to challenge the

incumbent State Attorney of the Third Judicial Circuit in the No-

vember 2011 general election. O’Steen, a criminal defense attorney

with a thriving practice in Dixie County, called Siegmeister and

“pledged his support.” The two men were acquainted as fellow law-

yers but had not engaged socially. Siegmeister testiﬁed that he

wouldn’t be surprised if O’Steen handled in excess of 300 criminal

cases during his ﬁrst term as State Attorney, from 2012 to 2016.

Siegmeister was unknown in Dixie County. So, once his

campaign got underway, O’Steen introduced him to many promi-

nent people there, including the county commissioners and other

oﬃcials. Siegmeister testiﬁed that he “didn’t have anybody like Mr.

O’Steen in the other counties.” O’Steen was “the only defense at-

torney that helped [him] that much in any county.” Siegmeister was

“super pleased” with O’Steen’s support.

In November 2015, Siegmeister was reelected as State Attor-

ney for the 2016–2020 term. Soon after the term got underway, the

leaders of several civic organizations in Columbia County and sur-

rounding communities approached him with concerns about the

number of gambling enterprises that were located in their neigh-

borhoods. Most of the enterprises operated “ﬁsh table games.”

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14 Opinion of the Court 22-13569

There were twenty-ﬁve gambling houses in Columbia County

alone.

On August 28, 2017, Siegmeister, as State Attorney, sent a

letter to the “owners, employees, and patrons of internet cafes and

sweepstakes adult arcades” engaged in gambling. The letter in-

formed them that the operation of an internet cafe and sweep-

stakes adult arcade was not exempt from Florida’s “gambling laws”

and that “all internet and/or sweepstakes adult arcades shall cease

operations by Thursday, October 12, 2017, at 5 p.m.” In Siegmeis-

ter’s opinion, the “ﬁsh table games . . . were illegal.”

All but one of those who received the letter “agreed to shut

down.” The one was Andy Tong. One of his gambling houses,

Treasure Island, was still functioning. So Siegmeister sent his inves-

tigator, Ryan Nydam, to case the Treasure Island facility. Nick Cox,

the statewide prosecutor, accompanied him. They played the ﬁsh

table games and developed probable cause to obtain a search war-

rant, which they promptly secured. Nydam and other investigators

in the State Attorney’s Oﬃce, Lisa Long and J.T. Williams, executed

the warrant, found twelve ﬁsh table machines and engaged with

two people who had wads of cash. The ﬁsh tables were “giant” in

size and very heavy. They nevertheless seized one table and $10,000

or more of cash. On leaving Treasure Island, they secured the build-

ing.

Siegmeister testiﬁed that Nydam advised him “over the

course of the investigation that some of those ﬁsh table games

were making $10,000 a week. So an establishment with ten of them

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22-13569 Opinion of the Court 15

is making a hundred grand just on those machines.” When asked

whether it “could be a half a million dollars a month,” Siegmeister

testiﬁed that it was his understanding that “it was an exorbitant

amount of money for what the window dressing looked like.”

On February 12, 2018, Siegmeister ﬁled an information in

the Circuit Court of Columbia County charging Andy Tong and

two of his associates with “keeping a gambling house” in violation

of Fla. Stat. § 849.01. 16 The crime was a third-degree felony, punish-

able by imprisonment for up to ﬁve years, and Tong needed a law-

yer.

Two weeks after Siegmeister ﬁled the information, Tong and

his associates retained O’Steen to represent them. After O’Steen

appeared in the case, Siegmeister told O’Steen that he was “prose-

cuting [the case] out of anger.” Tong had gotten under his skin. was

going to “hammer” him. He told O’Steen that he “better get his

money” from Tong up front. Siegmeister testiﬁed that he shouldn’t

have said that. “I reverted to a 26-year-old prosecutor, and I

shouldn’t have because I had to do extra work; [I] shouldn’t have

because law enforcement had to spend a lot of hours doing the

case. I should have just dealt with it on its face.”

O’Steen represented Tong and his associates under a Re-

tainer Agreement. The Agreement provided for a non-refundable

retainer of $15,000 and any additional fees needed to enable

O’Steen to do the work. The amount of any additional fee would

16 See Florida v. Tong, No. CO-2018-000046-CF (Fla. Cir. Ct. 2018).

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16 Opinion of the Court 22-13569

depend on several factors, such as “the time and labor required and

the complexity of the litigation,” and would have to be reasonable

because Tong only “agree[d] to pay a reasonable fee for such work.”

The Agreement obligated O’Steen, “as an oﬃcer of the court,” to

comply with “the rules regulating the Florida Bar.” In addition to

that obligation, because all criminal defense attorneys are inher-

ently bound to provide their clients the eﬀective assistance of coun-

sel mandated by the Sixth Amendment, the contract bound

O’Steen to do so.

In April, Siegmeister communicated a plea oﬀer to O’Steen:

Tong could plead guilty to a felony and be sentenced to ﬁve years’

probation, and the case against his two associates would be dis-

missed. Tong rejected the oﬀer. He told O’Steen that under no cir-

cumstances would he plead guilty to a felony.

O’Steen, perhaps sensing that Siegmeister was in way over

his head—the trial of the case against Tong would take several

weeks and consume more resources than Siegmeister had at his

disposal—considered the possibility that Siegmeister might be will-

ing to place Tong in the “PTI” (the pretrial diversion program) and

thus allow Tong to avoid a felony conviction. O’Steen discussed

the PTI possibility with Tong. He would pursue the possibility if

Tong paid him an additional attorney’s fee of $50,000.

To avoid paying the additional fee, Tong turned to the FBI.

Tong called the nearest FBI oﬃce, scheduling an appointment for

August 8, 2018. Tong was not a stranger to the FBI. He had met

with FBI agents in California before coming to Lake City to set up

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22-13569 Opinion of the Court 17

his gambling operation in 2015. And on August 24, 2017, after his

gambling operation was up and running, he had called the FBI to

complain about a police oﬃcer’s harassment of one of his female

employees. The FBI referred the complaint and other complaints

it received about the oﬃcer to the Department of Justice for inves-

tigation.

When Tong arrived at the FBI oﬃce on August 8, he met

with Special Agents Robert Blythe and Eric Petersen. He informed

them about the gambling case Siegmeister was prosecuting and

that O’Steen was representing him and his two associates. Then he

explained his reason for calling: O’Steen wanted $50,000 to get all

of his charges dropped. When he told O’Steen that he could only

come up with $30,000, O’Steen’s reply was: “I need the money up-

front.” He would take the $30,000 to Siegmeister’s house, and

Siegmeister would let him know if it was enough. Agent Blythe

testiﬁed that Tong’s revelation that Siegmeister was demanding a

bribe was “not the ﬁrst allegation [the FBI] had received regarding

this particular State Attorney.”

The agents “researched” Siegmeister and Tong before decid-

ing whether to seek permission from the head of the FBI in north-

ern Florida to commence an investigation.17 Agent Blythe testiﬁed

that Tong had “an extensive criminal record.” And that “somebody

with an extensive criminal record [is investigated] to corroborate

17 The agents learned that Tong had come to Columbia County from Califor-

nia and applied for a vending license to operate his gambling business in 2016

and had renewed the license in 2017 and 2018.

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18 Opinion of the Court 22-13569

their testimony one way or the other and collect evidence.” He

acknowledged that it was possible that someone with a criminal

record who was running a criminal operation could have “some

other ulterior motive” for bringing the matter to the FBI’s atten-

tion.

The agents received permission to proceed with an investi-

gation of Siegmeister and his operation of the State Attorney’s Of-

ﬁce. Tong would serve as their conﬁdential source, code-named

“Chance.” Their ﬁrst objective was to corroborate what Tong told

them. They would do so in two ways. First, in a conversation that

Tong would surreptitiously record, O’Steen would repeat the state-

ments Tong attributed to him in his conversation with Agents

Blythe and Petersen. That is, O’Steen needed $50,000 to get all the

charges dropped, and he needed the money “up front.” He would

take the $30,000 Tong had in hand to Siegmeister’s house, and

Siegmeister would let him know if that was enough.

The agents wired Tong so his conversations with O’Steen

could be recorded. They coached Tong on how to question O’Steen

and elicit what O’Steen purportedly told him previously about pay-

ing Siegmeister. When asked on cross-examination at O’Steen’s

trial, “Did you say to Tong, ‘Ask him to repeat what he told you

right before you came and spoke to us?’” Agent Blythe’s response

was, “That was the objective of these conversations. That was the

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22-13569 Opinion of the Court 19

. . . objective to recreate these conversations and to follow it

through its course.” 18

Second, the FBI would provide the cash Tong needed to give

to O’Steen (presumably to pay oﬀ Siegmeister). Agents dusted the

bills with “an extremely ﬁne dust that’s not visible to the human

eye.” According to Agent Petersen, “if someone had handled the

bills and you shone a UV light on them it would have the dust on

them and it would shine.”

On Friday, August 17, Tong recorded a conversation he had

with O’Steen in which O’Steen expressed the hope that he could

get Siegmeister to agree to have Tong placed in the “deferred pros-

ecution” program. To obtain that result, though, it would cost

thousands more in attorney’s fees:

O’Steen: So . . . if I gave you a number of sixty thou-

sand dollars and I make yours go away completely,

and you’re out of here, you can handle that without

any agreement? You asked for the number. I don’t

know if it’ll ﬂy or not.

18 In response to this question, “Did you say to Tong, ‘Look you told us that

O’Steen said he was going to bring the money to Siegmeister?’’’ Agent Blythe

said: “So we coached him to the best of our ability to try to collect as much

evidence as possible to recreate the conversations he had had [with O’Steen]

before.”

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20 Opinion of the Court 22-13569

[Tong]: Well what does it take . . . I know you’re go-

ing to go meet up with . . .

O’Steen: I’m going today [to meet with Siegmeister]

. . . I’m not going to pay him oﬀ. So I don’t want you

to think that. . . . I mean I’m not going to bribe him.

I’m going to go explain to him I got to eat around

here. . . . You’re saying you could probably come up

with more than thirty if I can make yours go away

without an agreement, is that would [sic] you’re tell-

ing me?

...

O’Steen: You want a price to make it go away? . . . Let

me go over there and talk to him and get a good feel

for where, I mean.

[Tong]: Yeah, that’s what I want to hear.

Later in the day, O’Steen and Tong spoke several times by

telephone. The conversations were recorded. After Tong insinu-

ated that any money he paid O’Steen would be used to bribe

Siegmeister, O’Steen rejected the insinuation:

O’Steen: There’s no bribe going on. I don’t want no

insinuation of that. But you’re payin’ me to use the

people that I know to make . . . you won’t ever have

to go to court to get three felonies dropped. The low-

est I’m going to get the results for is sixty-thousand

dollars . . . .

....

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22-13569 Opinion of the Court 21

That’s good as I’m gon’ do. That’s as good as it’s gon’

get and that’s not a payoﬀ. I’ve got people that will

pay for those favors, and I’m not gon’ burn em’ up

and not get paid for it.

....

Bottom line, Andy, if you want me to do it, it’s

sixty-thousand dollar additional retainer for Michael

[O’Steen]. I’m not paying the State Attorney a one red

cent.

....

But either way. That’s what it’s gon’ take. And I’m

not movin’, budgin’, I can probably get the other two

dismissed, but you’re gon’ have to do probation oth-

erwise. Or you can go to trial and ﬁght em’ out, which

I don’t think you can win.

....

I am not burnin’ up a favor that I [unintelligible] can

get somebody to pay for good money to make cases

go away. I’m not gon’ burn that favor up.

....

Andy, . . . if you don’t trust me, I’ll try and send you

somewhere else, but you’re not gone’ get the results.

Siegmeister later conﬁrmed that he and O’Steen met on Au-

gust 17 at a Walmart and discussed placing Tong in the PTI pro-

gram. Afterwards, they drove to Siegmeister’s farm. En route,

Siegmeister asked O’Steen how much he was charging Tong.

When O’Steen said it was $60,000, Siegmeister told him he could

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22 Opinion of the Court 22-13569

aﬀord to buy one of his Braford bulls. On Monday, August 20, in a

recorded phone conversation with Tong, O’Steen explained the de-

tails of the PTI disposition Siegmeister proposed. Among other

things, Tong would have to pay approximately $7,500 in restitu-

tion.

The FBI provided the $60,000 Tong needed to pay O’Steen.

Tong gave O’Steen $30,000 in cash on Thursday, August 23, and

another $30,000 in cash on Tuesday, September 4. The bills, having

been dusted, were traceable. Meanwhile, on Tuesday, August 27,

2018, at a hearing in open court, Circuit Judge Leandra G. Johnson

stated that O’Steen had informed her that he was negotiating a de-

ferred prosecution agreement with the State which had not yet

been executed. Assistant State Attorney John Durrett conﬁrmed

this and informed Judge Johnson that they were “still discussing the

terms.” 19 On Wednesday, September 5, 2018, O’Steen’s oﬃce in-

formed Judge Johnson’s judicial assistant that the deferred prosecu-

tion agreement had been signed and executed that day. The next

day Siegmeister ﬁled a Notice of Pre-Trial Diversion Program with

the Circuit Court, which stated that Tong had entered the pro-

gram. 20

19 Transcript of hearing in Case No. CO-2018-000046-CF, in the Circuit Court

of the Third Judicial Circuit of Florida in and for Columbia County, Florida,

at 3. Judge Johnson stated that once the PTI had been executed, the case would

be removed from the Court’s docket.

20 On October 1, 2019, Kelly B. Mathis, a Florida attorney, ﬁled an appearance

for Tong in the still pending gambling case. Mathis was the ﬁrst lawyer to rep-

resent Tong after Siegmeister ﬁled the information in February 2018. Tong

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22-13569 Opinion of the Court 23

The following week, the FBI observed O’Steen and his fa-

ther go to Siegmeister’s farm and pick up a Braford bull.21 To pay

for the bull, O’Steen gave Siegmeister a $4,000 check from his fa-

ther’s business account. Later that day, $4,000 in cash was depos-

ited into O’Steen’s father’s bank account. O’Steen then sold the bull

to a farmer at a loss.

From Friday, August 17, through O’Steen’s purchase of the

bull, the FBI had O’Steen, Siegmeister, and Tong (when he was in

the presence of either of them as a conﬁdential FBI source) under

surveillance on the ground and from the air. The ground surveil-

lance was carried out by several teams, some not consisting of FBI

personnel. Surveillance from the air required eight to twelve days.

According to Agent Blythe, the formal FBI investigation “started

with a search warrant on August 21st to Verizon to get stored con-

tent of text messages.” The FBI obtained search warrants again in

October and November 2018.

The FBI were unable to corroborate Tong’s story: O’Steen

wanted an additional attorney’s fee of $50,000; Tong had $30,000;

O’Steen said he needed to take the $30,000 to Siegmeister’s house

and Siegmeister would let him know if it was enough. The Gov-

ernment declined to call Tong as witness. It would present its

case—especially the Count Three allegation that O’Steen extorted

discharged Mathis and hired O’Steen. The docket sheet for the case shows that

the gambling case was terminated on May 20, 2020.

21 The FBI was surveilling O’Steen that day. Agent Blythe testified that they

had “people on the ground, people in the air.”

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24 Opinion of the Court 22-13569

$60,000 from Tong through fear of economic harm (Count 3)—

without his testimony.

* * *

The Government had listed Tong and Kelly Mathis as pros-

ecution witnesses on the witness list it ﬁled with the District Court

on May 31, seven days before O’Steen’s trial began.22 Before that,

on May 27, O’Steen had ﬁled his witness list and identiﬁed Tong

and Mathis as defense witnesses. On June 3, the Government ﬁled

its exhibit list, 23 and on June 7, O’Steen ﬁled his exhibit list. con-

tained an Exhibit J labeled “Civil Complaint Tong vs. O’Steen and

Siegmeister.” 24

On December 16, 2021, Mathis ﬁled a Veriﬁed Civil Com-

plaint against Siegmeister and O’Steen in the U.S. District Court for

the Middle District of Florida, Case No. 3:21-cv-1235. 25 The com-

plaint alleged that the defendants, acting under color of state law,

“solicited $60,000.00 from Tong in violation of the due process

22 In its May 10, 2022, order setting O’Steen’s case for trial, the Court instructed

each party to file a witness list and an exhibit list with the Clerk’s Office and

the Court by June 3.

23 Then the Government filed amended exhibit lists on June 6 and 15.

24 O’Steen amended his exhibit list three times—twice on June 7 and once on

June 8. Each amendment cited Exhibit J.

25 We take judicial notice of the commencement of Case No. 3:21-cv-1235

(M.D. Fla.) and the pleadings filed in the case but not for the truth of the matter

asserted in those pleadings. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278,

1278 n.10 (11th Cir. 1999). The case was assigned to the judge presiding over

the instant case.

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22-13569 Opinion of the Court 25

clause of the 14th Amendment” and sought damages under 42

U.S.C. § 1983. The complaint also alleged that O’Steen was liable

for legal malpractice in among other things “the acceptance of

$60,000 bribe money from Tong.” Notably, the complaint con-

tained no reference to the FBI or its investigation of the State At-

torney.

On April 11, 2022, Tong amended his complaint against

Siegmeister and O’Steen. The amendment’s factual recitations mir-

rored conduct alleged in Counts One through Three of the indict-

ment in the instant case. Count I, brought under 42 U.S.C. § 1983,

alleged that Siegmeister deprived Tong of due process of law and

subjected him to an excessive ﬁne in violation of the Eighth and

Fourteenth Amendments. Count II, also brought under § 1983, al-

leged that the defendants conspired to extort Tong, deprive him of

his property without due process of law, and subject him to an ex-

cessive ﬁne in violation of the Eighth and Fourteenth Amend-

ments. Count III, brought against O’Steen for legal malpractice, al-

leged that he accepted $60,000 in “bribe money” from Tong, and

sought damages, including the payments to O’Steen. Like the orig-

inal complaint, the amended complaint contained no reference to

the FBI or its investigation of the State Attorney.

On April 15, 2022, the United States, represented by the pros-

ecutors in the instant criminal case, ﬁled an unopposed motion pur-

suant to Rule 24(a)(2) of the Federal Rules of Civil Procedure 26 to

26 Rule 24 states in relevant part:

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26 Opinion of the Court 22-13569

intervene in the civil action Tong had brought against Siegmeister

and O’Steen. The motion sought leave to intervene in the civil ac-

tion and a stay of its proceedings “until the conclusion of a pending

federal prosecution involving Marion Michael O’Steen and Jeﬀrey

Alan Siegmeister, defendants herein, and the same facts, evidence,

witnesses, and circumstances at issue in the instant civil suit.” The

prosecutors requested a

limited stay of the civil proceedings, with any appro-

priate adjustments to the Court’s Case Scheduling

Order [in the civil case], to avoid prejudice or harm to

the government’s ongoing federal criminal case and

the parties in this case as the conduct at issue in this

civil action overlaps with a signiﬁcant aspect of the

ongoing federal criminal prosecution.

In sum, the Government requested that the Court “stay this

civil proceeding for a period of ninety days, adjust the Case Sched-

uling Order as appropriate, or provide other relief to the govern-

ment as required in the interests of justice.”

(a) Intervention of Right. On timely motion, the court must

permit anyone to intervene who:

...

(2) claims an interest relating to the property or trans-

action that is the subject of the action, and is so situ-

ated that disposing of the action may as a practical

matter impair or impede the movant's ability to pro-

tect its interest, unless existing parties adequately rep-

resent that interest.

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22-13569 Opinion of the Court 27

* * *

In the criminal case, the Government would rely on Scott

Richardson’s expert opinion testimony to prove that Tong consented

to pay O’Steen an additional attorney’s fee of $60,000 by “extor-

tion” “through fear of economic harm”27 (Count 3).

So the Government called Richardson to the witness stand.

Richardson testiﬁed that he was a board-certiﬁed lawyer who (1)

previously had served as the “second-in-command” prosecutor in

the Palm Beach County State Attorney’s Oﬃce; (2) was currently

in private practice as a criminal trial lawyer; and (3) had represented

lawyers and judges who had been accused of violating the Florida

Bar’s ethics rules. In his view, O’Steen had violated the Florida Bar’s

ethics rules:

A. My opinion is that two rules of professional conduct

were violated.

Q [by the prosecutor]. And tell us about those one at a

time, please.

27 The District Court’s Instruction No. 19, which mirrored Government’s pro-

posed Instruction No. 15, instructed the jury:

‘Extortion’ means obtaining property from a person who con-

sents to give it up because of the wrongful use of actual or

threatened force, violence, or fear. ‘Fear’ means a state of anx-

ious concern, alarm, or anticipation of harm. It includes the

fear of ﬁnancial loss as well as fear of physical violence.

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28 Opinion of the Court 22-13569

A. All right. They are Rule 4-1.5(a) with regard to

greatly excessive fees and 4-1.5(f )(3)(B) regarding

contingent fees in criminal cases.

....

Q. And in your expert opinion, is a $60,000 fee under

these circumstances appropriate for the pretrial inter-

vention or deferred prosecution option?

A. I felt it was clearly excessive.

At this point during Richardson’s testimony, defense counsel

renewed O’Steen’s Rule 403 objection. The Court overruled the ob-

jection, stating that it was doing so for the reason it gave in denying

O’Steen’s motion in limine. Later, in submitting Count Three to the

jury, the District Court gave this instruction:

During the trial you heard some evidence suggesting

that the Defendant may have violated certain rules of

the Florida Bar regulating the ethical practice of law.

Although you may consider this evidence in deciding

whether the Defendant is guilty of the crimes charged

in the indictment, remember that the violation of

Florida Bar regulations or Florida Bar ethical rules

does not constitute a criminal oﬀense. You may not

convict the Defendant on any of the charges in the

indictment solely because you ﬁnd that he has vio-

lated any Florida Bar rules or regulations regarding

ethics.

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22-13569 Opinion of the Court 29

When the Government rested its case-in-chief, O’Steen

moved the District Court for a judgment of acquittal 28 on the

ground that the Government failed to make out a case under

Count Three because the $60,000 he obtained from Andy Tong

was not extortionate; the money was not Tong’s property but the

Government’s.29 The Court reserved its ruling on the motion. After

the evidence closed, O’Steen renewed the motion and again the

Court reserved its ruling. The Court denied the motion a day after

the jury returned their verdict.

After it reserved its ruling on O’Steen’s renewed motion for

judgment of acquittal, the District Court convened a charge con-

ference to settle the jury instructions on Counts One through Four

of the indictment. The Court began the conference by providing

the parties with a set of instructions it composed after reviewing

the proposed instructions the parties had submitted before trial.

Count Three charged O’Steen with obtaining Tong’s prop-

erty, $60,000, by extortion and extortion under color of oﬃcial

right and with aiding and abetting Siegmeister obtain the property

in the same extortionate way. We set out ﬁrst the Government’s

28 See Fed. R. Crim. P. 29.

29 O’Steen’s motion cited other grounds for Rule 29 relief that defense counsel

conceded were foreclosed by precedent and were asserted to preserve the rec-

ord for appeal, e.g., that the Government failed to prove the interstate nexus,

or that the extortion (Count 3) had an effect on interstate commerce.

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30 Opinion of the Court 22-13569

proposed instruction on the extortion oﬀenses and the instructions

the District Court gave the jury.

The Government’s proposed Instruction No. 15 stated what

the Government had to prove to establish that O’Steen was guilty

of “extortion” or “extortion under color of oﬃcial right.” See Ap-

pendix A (Counts 3 and 4). The instruction treated Count Three as

having charged O’Steen alone. Thus, No. 15 would inform the jury:

The Defendant can be found guilty [on Count Three]

only if all the following facts are proved beyond a rea-

sonable doubt:

(1) the Defendant caused [Andy Tong] to part

with property;

(2) the Defendant did so knowingly by using “ex-

tortion” or “extortion under color of oﬃcial

right;” and

(3) the extortionate transaction delayed, inter-

rupted, or aﬀected interstate commerce.

The District Court’s Instruction No. 19, see Appendix B, rep-

licated Government’s No. 15 with a slight modiﬁcation to No. 15’s

introduction.30 As modiﬁed, No. 19 informed the jury that “Count

Three charges the Defendant with committing or aiding and

30 The District Court’s Instruction No. 19 was a combination of Eleventh Cir-

cuit Pattern Jury Instructions O70.1 and O70.2.

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22-13569 Opinion of the Court 31

abetting the commission of the substantive oﬀense of interfering

with commerce by extortion” (Counts 3 and 4, 7 and 8).31 Whereas

Government’s No. 15 informed the jury: “As charged in Count

Three, it’s a Federal crime to extort something from someone else

and in doing so to obstruct, delay, or aﬀect interstate commerce”

(Counts 3 and 4).

Count Three charged O’Steen with aiding and abetting

Siegmeister in Siegmeister’s acquisition of Tong’s $60,000 by extor-

tion and extortion under color of oﬃcial right (Counts 7 and 8).

The Government proposed in Instruction No. 17 that the District

Court use Eleventh Circuit Pattern Jury Instruction S7 in instruct-

ing the jury on the aiding and abetting allegations. See Appendix C.

Instruction S7 states in its opening sentence that “it is possi-

ble to prove the Defendant guilty of a crime even without evidence

that the Defendant personally performed every act charged.” Be-

cause S7 is a pattern jury instruction and an abstract statement of

31 The jurors were given a redacted copy of the indictment when they retired

to deliberate. Instruction No.14 referred to the indictment thus:

The indictment in this case charges the Defendant with com-

mitting four separate crimes, called “counts.” Each count has

a number. You will be given a copy of the indictment is not

evidence of anything. It is simply the formal document that

sets forth the charges. indictment to refer to during your delib-

erations. I remind you that the indictment is not evidence of

anything. It is simply the formal document that sets forth the

charges.

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32 Opinion of the Court 22-13569

law—how a person can be held criminally liable as an accomplice

for aiding and abetting the commission of a generic crime—S7 did

not specify the crime O’Steen allegedly aided and abetted or who

committed the crime. That information would have to be added to

S7 by interlineation so that the jury would know that to ﬁnd

O’Steen guilty of aiding and abetting as charged in Count Three,

the jury would have to ﬁrst ﬁnd beyond a reasonable doubt that

Siegmeister acquired Tong’s $60,000 by extortion or extortion un-

der color of oﬃcial right as Count Three alleged (Counts 1 and 2).

The District Court, in Instruction No. 21, adopted Pattern

Jury Instruction S7, as the Government proposed, in instructing the

jury on aiding and abetting. See Appendix C. Instruction No. 21 dif-

fered from S7 in that the District Court inserted the following lan-

guage preceding the opening sentence of S7: “You will note that,

in Count Three, the Defendant is charged with aiding and abetting

the commission of the alleged crime.”32 In reading Count Three

and S7 together, the jury could conclude that “the alleged crime”

32 In drafting O’Steen’s proposed instruction on Count Three, O’Steen’s law-

yers apparently read Count Three as charging Siegmeister with obtaining

Tong’s $60,000 under color of oﬃcial right (Count 2) and O’Steen with aiding

and abetting Siegmeister’s commission of the crime (Count 8). See Appendix

D. Counsel therefore proposed that the Court instruct the jury that to ﬁnd

O’Steen guilty of the aiding and abetting oﬀense, they had to ﬁnd ﬁrst that

Siegmeister obtained Tong’s money under color of oﬃcial right. The lawyers

eﬀectively abandoned their proposed instruction at the charge conference

when they did not request the Court to adopt it.

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22-13569 Opinion of the Court 33

was Siegmeister’s acquisition of Tong’s $60,000 by extortion or ex-

tortion under color of oﬃcial right and that O’Steen aided and

abetted Siegmeister’s commission of the crime (Counts 7 and 8).

iii

Neither party objected to the District Court’s proposed in-

structions as modiﬁed, so those instructions became part of the

Court’s charge to the jury. The verdict form the District Court sub-

mitted to the jury without objection was the verdict form the Gov-

ernment drafted and submitted to the District Court along with its

proposed jury instructions. Paragraph ﬁve of the verdict form

asked the jury to ﬁnd whether O’Steen was not guilty or guilty of

Count Three, which charged him with “Interference with Com-

merce by Extortion.”

The jury found O’Steen guilty. Given that ﬁnding, the verdict

form instructed the jury to “complete the answer to Question 6.”

The verdict form provided the answer. The jury was to ﬁnd

O’Steen guilty of committing or aiding and abetting the commis-

sion of extortion or extortion under color of oﬃcial right or both:

We, the jury, unanimously ﬁnd MARION MICHAEL

O’STEEN committed or aided and abetted the com-

mission of the following (choose one):

_____ Extortion

_____ Extortion Under Color of Oﬃcial Right

_____ Both Extortion and Extortion Under

Color of Oﬃcial Right.

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34 Opinion of the Court 22-13569

The jury checked “Both.” Then, turning to Count Four, they

found O’Steen guilty as charged.

O’Steen asks us to reverse his Count Three conviction on

the basis that a private citizen cannot be convicted as a principal to

extortion under color of oﬃcial right. He concedes that he did not

raise the issue in District Court, so we review for plain error. See

United States v. Margarita Garcia, 906 F.3d 1255, 1266 (11th Cir. 2018).

However, O’Steen did argue in District Court that, under

the Hobbs Act, the extorted property “must be actual property of

the victim,” rather than “sting money the government provided.”

Therefore, the $60,000 that O’Steen was alleged to have extorted

would not qualify under the statute, because that money was orig-

inally provided by law enforcement. The District Court ultimately

rejected that argument, holding that the Hobbs Act merely requires

“obtaining property from another,” regardless of the property’s

source or ownership.

Now on appeal, O’Steen reiterates that “[t]he $60,000 was

not Mr. Tong’s money—it was the FBI’s money.” And because the

money was not Tong’s, the Government could not prove that Tong

experienced any “fear of economic harm” under the Hobbs Act.

O’Steen’s brief cites no cases in support of this proposition, but it

is enough for our purposes of review that he raised the issue. See

United States v. Starke, 62 F.3d 1374, 1379 (11th Cir. 1995) (noting

that “we liberally read briefs to ascertain the issues raised on ap-

peal”).

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22-13569 Opinion of the Court 35

Therefore, we review the suﬃciency of the evidence to de-

termine whether, viewing the facts in the light most favorable to

the Government, “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United

States v. Ransfer, 749 F.3d 914, 930 (11th Cir. 2014) (quoting Jackson

v. Virginia, 334 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).

The jury found O’Steen guilty of Count Three after ﬁnding

that he committed extortion and extortion under color of oﬃcial

right (Counts 3 and 4) or that he aided and abetted the commission

of those oﬀenses by another person, i.e., Siegmeister (Counts 7

and 8). We review the support in the record for those convictions

and conclude that we must reverse. We begin with the latter two

oﬀenses.

Count Three alleged that O’Steen extorted Andy Tong and

that he aided and abetted Siegmeister in his acquisition of Tong’s

$60,000 by extortion and extortion under color of oﬃcial right

(Counts 7 and 8). To obtain O’Steen’s convictions for aiding and

abetting the commission of those oﬀenses, the Government had to

prove, as a threshold element, that Siegmeister committed the of-

fenses (Counts 1 and 2).

The District Court’s Instruction No. 21, which adopted the

Government’s proposed Instruction No. 17, instructed the jury on

the aiding and abetting oﬀenses pursuant to Eleventh Circuit Pat-

tern Jury Instruction S7. See Appendix C. The instruction did not

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36 Opinion of the Court 22-13569

tell the jury what the Government had to prove to enable them to

ﬁnd O’Steen guilty of the oﬀenses (Counts 7 and 8). The closest

Instruction S7 came to explaining what the Government had to

prove was in two sentences: “A Defendant ‘aids and abets’ a person

if the Defendant intentionally joins with the person to commit a

crime,” and “[a] Defendant is criminally responsible for the acts of

another person if the Defendant aids and abets the other person.”33

Siegmeister was “the person” and “the other person.” The

jury was aware that Siegmeister was the alleged principal because

they had a copy of Count Three and the allegation that Siegmeister

and O’Steen, aiding and abetting each other, obtained Tong’s prop-

erty through extortion and extortion under color of oﬃcial right.

33 In drafting its proposed Instruction No. 17, we assume that the Govern-

ment’s attorneys knew that to ﬁnd O’Steen guilty of the aiding and abetting

oﬀenses (Counts 7 and 8), the jury had to ﬁnd beyond a reasonable doubt, as

a threshold element of the aiding and abetting oﬀenses, that Siegmeister ob-

tained Tong’s $60,000 by extortion and extortion under color of oﬃcial right

(Counts 1 and 2). The Government’s attorneys, and O’Steen’s lawyers as well,

knew about this threshold element because proof of the element is hornbook

law. An accused cannot be convicted as an accomplice of aiding and abetting

the commission of a crime by a principal unless the prosecution ﬁrst proves

beyond a reasonable doubt that the principal committed the crime. Wayne R.

LaFave, Substantive Criminal Law § 13.3(c) (3d ed 2023). This is so even if “the

principal . . . has been acquitted or has not yet been tried.” Id. And “even when

the principal had . . . been convicted, the guilt of the principal must be estab-

lished at the trial of the accomplice as part of the proof on the charge against

the accomplice.” Id.; See Sandefer v. United States, 447 U.S. 10, 14–20, 100 S. Ct.

1999, 2003–06 (1980) (holding that a defendant accused of aiding and abetting

in the commission of a federal oﬀense may be convicted even if the alleged

principal has been acquitted of that oﬀense).

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22-13569 Opinion of the Court 37

But Instruction S7 did not inform them of what the Government

had to prove to obtain O’Steen’s convictions for aiding and abet-

ting, the “other person’s” crime.

Suppose the jurors, adding two and two together, read

Count Three and the reference to Count Three in the District

Court’s Instruction No. 21 to mean that Siegmeister was “the per-

son” and “the other person.” Would that save O’Steen’s aiding and

abetting convictions? (Counts 7 and 8). No, because the Govern-

ment did not prove that Siegmeister acquired Tong’s $60,000 by ex-

tortion and extortion under color of oﬃcial right.34 O’Steen kept

the $60,000 and was indicted and convicted for failing to report it.35

In sum, there is not a shred of evidence to support O’Steen’s

conviction for aiding and abetting Siegmeister’s acquisition of

$60,000 through extortion and extortion under color of oﬃcial

right. Whether the Count Three conviction can be salvaged there-

fore depends on whether O’Steen himself obtained the $60,000 at-

torney’s fee from Tong through extortion or extortion under color

34Rather, the evidence established that Siegmeister aided and abetted

O’Steen’s acquisition of the additional $60,000 attorney’s fee O’Steen charged

Tong by delaying the paperwork on Tong’s pretrial diversion disposition until

O’Steen had the money on hand.

35 There is no doubt that O’Steen kept the $60,000. On September 9, 2022,

after the jury returned their verdicts, the Government’s attorneys ﬁled United

States’ Motion for Preliminary Order of Forfeiture asking the District Court

to order O’Steen to forfeit $60,000 to the United States, i.e., the money pro-

vided to Tong and given by him to O’Steen. The Court granted the motion

on September 28, 2022. And in sentencing O’Steen on October 18, 2022, the

order was made part of O’Steen’s sentence.

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38 Opinion of the Court 22-13569

of oﬃcial right (Counts 3 and 4). We consider whether O’Steen

committed the two oﬀenses as alleged in reverse order.

O’Steen argues that the District Court committed plain er-

ror in granting the Government’s request that the jury be in-

structed to determine whether he obtained Tong’s money by ex-

tortion under color of oﬃcial right. He maintains that as a private

person, he could not be charged with the oﬀense. Only public oﬃ-

cials can be charged.36 He cites a litany of decisions making that

point. See Evans v. United States, 504 U.S. 255, 268 (1992); United

States v. Manzo, 636 F.3d 56, 64 (3d Cir. 2011); United States v. McFall,

558 F.3d 951, 955, 959–60 (9th Cir. 2009); United States v. Saadey, 393

F.3d 669, 675 (6th Cir. 2005); United States v. McClain, 934 F.2d 822,

831 (7th Cir. 1991).

The Government counters O’Steen’s argument by saying

that the District Court’s jury instructions as a whole precluded the

jury from ﬁnding that O’Steen had committed extortion under

color of oﬃcial right as a principal. The Court instructed the jury,

“Extortion under color of oﬃcial right is the wrongful taking or

receipt of money or property by a public oﬃcer who knows that

the money or property was taken or received in return for doing an

36 The District Court’s Instruction No. 19, which adopted Government’s In-

struction No. 15, was a combination of Eleventh Circuit Pattern Jury Instruc-

tions 070.1 and 070.2 and uses the words “public official” six times.

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22-13569 Opinion of the Court 39

oﬃcial act.” “There was only one public oﬃcer here: State Attor-

ney Siegmeister.”

The Government is right. But it ignores the instruction it re-

quested the District Court to give. The District Court’s Instruction

No. 19 adopted the Government’s Instruction No. 15. And that in-

struction told the jury to convict O’Steen on Count Three if the

Government proved beyond a reasonable doubt that he obtained

Tong’s property “by using ‘extortion’ or ‘extortion under color of

right.’” See Appendix A. The word “public oﬃcer” appears ﬁve

times in Instruction Nos. 15 and 19. The Government presumably

requested that the Court give Instruction No. 15 because Count

Three alleged that O’Steen extorted Tong’s property “under color

of oﬃcial right.”

What’s more, the Government was well aware of the diﬀer-

ences between extortion and extortion under color of oﬃcial right.

The oﬀenses have distinct elements. A public oﬃcial extorting a

person’s property under color of oﬃcial right does so in return for

doing or not doing an oﬃcial act. In its proposed Instruction No.

15, the Government made that absolutely clear:

“Extortion under color of oﬃcial right” is the wrong-

ful taking or receipt of money or property by a public

oﬃcer who knows that the money or property was

taken or received in return for doing an oﬃcial act. It

does not matter whether or not the public oﬃcer em-

ployed force, threats, or fear.

Appendix A.

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40 Opinion of the Court 22-13569

The diﬀerences between extortion and extortion under

color of oﬃcial right are so striking that it would be a strange case

if a public oﬃcer committed both oﬀenses simultaneously. In

Count Three, the Government presented a strange case. It alleged

that Siegmeister, a public oﬃcial, committed both oﬀenses

(Counts 1 and 2) and that O’Steen committed both oﬀenses as well

(Counts 3 and 4).

In sum, the District Court’s Instruction No. 19 invited the

jury to ﬁnd O’Steen guilty on Count Three if the Government

proved beyond a reasonable doubt that he obtained Tong’s prop-

erty through extortion under color of oﬃcial right. O’Steen’s

Count Three conviction cannot be salvaged on the basis of the

jury’s ﬁndings that O’Steen committed extortion under color of of-

ﬁcial right (Count 4) or that he aided and abetted the commission

of extortion and extortion under color of oﬃcial right (Counts 7

and 8). If the conviction is to be salvaged, it has to be on the theory

that O’Steen obtained Tong’s property, “with his consent, induced

by wrongful use of actual or threatened force, violence, or fear . . .

of ﬁnancial loss” (Count 3). 19 U.S.C. § 1951(a); Appendix B. To be

precise, there must be some evidence that O’Steen committed ex-

tortion through fear of ﬁnancial loss.

iii

In his Rule 29 motion for acquittal at trial, O’Steen argued

that he could not be convicted of Hobbs Act extortion because the

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22-13569 Opinion of the Court 41

extorted property must be the “actual property” of the victim.37

We review this issue on appeal because it was raised in O’Steen’s

initial brief, arguing that “[t]he $60,000 was not Mr. Tong’s

money—it was the FBI’s money.” Although O’Steen frames this ar-

gument as rebutting Tong’s alleged “fear of economic harm,” it ac-

tually goes toward the Hobbs Act’s commerce element, which is the

basis for the federal government’s jurisdiction over the oﬀense.

The Hobbs Act deﬁnes “commerce” to include all “com-

merce over which the United States has jurisdiction.” 18 U.S.C.

§ 1951(b)(3). In other words, the statute reaches only as far as Con-

gress can exercise its constitutional authority over interstate com-

merce. See U.S. Const. art. I, § 8, cl. 3. In order to establish the re-

quired “interstate nexus,” the Government must “show a realistic

probability of an eﬀect, or some actual de minimis eﬀect, on com-

merce.” United States v. Kaplan, 171 F.3d 1351, 1354 (11th Cir. 1999).

More speciﬁcally, the Government can prosecute a substantive

37 O’Steen argued:

As to Counts Two and Three, the Hobbs Act requires extor-

tion—the extortion must be of property—and that’s some-

what of a term of art for the Hobbs Act—that the property be

obtained from the victim. The property was the $60,000 sting

money the government provided. . . .

I did a diligent search, Judge. I could not find any case law on

this. My argument is that the property for extortion for [the]

Hobbs Act must be actual property of the victim. And I could

find no law to the contrary.

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42 Opinion of the Court 22-13569

crime of Hobbs Act extortion only when one of three conditions is

met:

(1) the crime depletes the assets of an individual who

is directly engaged in interstate commerce; (2) the

crime causes the individual to deplete the assets of an

individual who is directly engaged in interstate com-

merce; or (3) the number of individuals victimized or

the sums involved are so large that there will be a cu-

mulative impact on interstate commerce.

United States v. Diaz, 248 F.3d 1065, 1084–45 (11th Cir. 2001).

Although this Court has never squarely considered whether

the Government can prove Hobbs Act extortion where the extorted

property was provided solely by law enforcement, the Sixth Circuit

addressed precisely that question in United States v. DiCarlantonio,

870 F.2d 1058 (6th Cir. 1989). In that case, like here, the allegedly

extorted money had been provided to the victim by the FBI. See

DiCarlantonio, 870 F.2d at 1060. And the Sixth Circuit held that “the

mere receipt of government funds” could not create the requisite

eﬀect on interstate commerce. Id. at 1060–61; see also United States

v. Rindone, 631 F.2d 491, 494 (7th Cir. 1980).

We agree. Although the use of government funds as bribe

money depletes the funds available to the government, it does not

“deplete[] the assets of an individual who is directly engaged in inter-

state commerce.” See Diaz, 248 F.3d at 1084–45 (emphasis added).

Therefore, evidence of an alleged extortion involving purely

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22-13569 Opinion of the Court 43

government money cannot establish even the minimal eﬀect on in-

terstate commerce that is required by the Hobbs Act.

* * *

We have combed the record for evidence that O’Steen com-

mitted extortion through fear of ﬁnancial harm as alleged in Count

Three. See Fries, 725 F.3d at 1293. We ﬁnd none. Since O’Steen, as

the principal, committed none of the Hobbs Act oﬀenses Count

Three alleged (Counts 3 and 4) and, as an accomplice, did not aid

and abet their commission (Counts 7 and 8), we cannot aﬃrm his

Count Three conviction. The District Court’s judgment on Count

Three is therefore reversed.

II. The Count Four Appeal

Count Four of the indictment alleged that on or about Au-

gust 23, 2018, O’Steen, in the course of his law practice, “received

more than $10,000 in currency in one transaction [and] did willfully

fail to ﬁle a report, to-wit: Form 8300, with the Financial Crimes

Enforcement Network, within ﬁfteen days after the currency is re-

ceived, as prescribed by the applicable regulations,” in violation of

31 U.S.C. §§ 5311 and 5322 and 31 C.F.R. § 1010.330(a).

Section 5331 provides that “[a]ny person . . . who . . . receives

more than $10,000 in coins or currency . . . shall ﬁle a report . . .

with respect to such transaction . . . at such time . . . as the Secretary

may, by regulation, prescribe.” 31 U.S.C. § 5331(a) (emphasis added).

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44 Opinion of the Court 22-13569

The relevant Secretary of the Treasury regulation provides that a

recipient must report an “initial payment in excess of $10,000 . . .

within 15 days of its receipt.” 31 C.F.R. § 1010.330(b)(1); see also id.

§ 1010.330(b)(3) (“The report must be made within 15 days after

receiving the payment in excess of $10,000 . . . .”). Section 5322

provides criminal penalties for “[a] person [who] willfully violat[es]

this subchapter [including 31 U.S.C. § 5331] or a regulation pre-

scribed under this subchapter [including 31 C.F.R. § 1010.330].” 31

U.S.C. § 5322(a).

On May 20, 2019, after learning of the FBI’s investigation

into Siegmeister’s operation regarding the State Attorney’s Oﬃce

and the Tong gambling case, O’Steen ﬁled a Form 8300 with the

“Department of the Treasury Internal Revenue Service” reporting

that on August 24 and again on September 4, 2018, his law oﬃce,

M. Michael O’Steen, P.A., had received from Andy Tong, an “Inter-

net Café Owner,” $30,000 in cash for “Legal Services” performed. 38

O’Steen violated the law, as charged in Count Four, when he failed

to ﬁle a Form 8300 by September 7, 2018, ﬁfteen days after receiv-

ing the ﬁrst of Tong’s two $30,000 payments as required by 31

C.F.R. § 1010.330(a) and (b).

38 Because the Form 8300 O’Steen filed omitted “information . . . in the indi-

cated required fields,” the agency was “not able to process the form.” So, on

November 18, 2019, it “return[ed] the reports and request[ed] the missing in-

formation,” highlighting “those fields missing critical information on the en-

closed report.” O’Steen subsequently provided the information.

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22-13569 Opinion of the Court 45

O’Steen appeals his Count Four conviction on the ground

that the District Court erred in denying his motion for judgment

of acquittal on Count Four.39 He contends that he was entitled to

an acquittal because the Government failed to prove beyond a rea-

sonable doubt that he knew of the ﬁfteen-day ﬁling period by Sep-

tember 7, 2018.

We decide de novo whether the Government’s evidence was

suﬃcient to prove O’Steen’s knowledge of the ﬁfteen-day ﬁling pe-

riod. See United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).

In doing so, we consider the evidence in a light most favorable to

the Government, making all reasonable inferences and credibility

choices in its favor. Id. So long as the jury, “choosing among rea-

sonable interpretations of the evidence, could ﬁnd beyond a rea-

sonable doubt” that O’Steen was aware of the ﬁfteen-day ﬁling

39 O’Steen moved for judgment of acquittal on Count Four at the close of the

Government’s case-in-chief. The District Court reserved its ruling on the mo-

tion. O’Steen renewed his motion at the close of the evidence, and the Court

once again reserved its ruling. At a hearing it convened two days after the jury

returned their verdicts, the District Court denied the motion with this state-

ment:

Mr. O’Steen ﬁled the Form 8300 six days after learning that he

was being investigated by the FBI in relation to Mr. Tong and

that the FBI was aware that he had received a $60,000 payment.

The jury could certainly draw the inference by his action im-

mediately after learning of the investigation that he had

knowledge of the reporting requirement and the fact that he

had failed to act in conformance with that requirement, and it

appears that the jury drew that inference.

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46 Opinion of the Court 22-13569

period, the Government made out a case for the jury on Count

Four. United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004).

Decisions of the former Fifth Circuit in United States v.

Granda, 565 F.2d 922 (5th Cir. 1978), 40 and the Supreme Court in

Ratzlaf v. United States, 510 U.S. 135, 114 S. Ct. 655 (1994), conﬁrm

that O’Steen’s knowledge of the ﬁfteen-day ﬁling period is an ele-

ment of the Count Four crime.

In Granda¸ the Court addressed two reporting statutes, then

codiﬁed at 31 U.S.C. §§ 1058 and 1101, materially the same as, and

the predecessors of §§ 5322 and 5331. It held that “the terms know-

ing and willful require proof of the defendant’s knowledge of the

reporting requirement and his speciﬁc intent to commit the crime.”

Granda, 565 F.2d at 925–26. In Ratzlaf, the Supreme Court, approv-

ing the holdings of Granda and other Court of Appeals decisions

on point, found it “signiﬁcant that § 5322(a)’s omnibus ‘willfulness’

requirement, when applied to other provisions in the same sub-

chapter, consistently has been read by the Courts of Appeals to re-

quire both ‘knowledge of the reporting requirement’ and a ‘speciﬁc

intent to commit the crime,’ i.e., ‘a purpose to disobey the law.’”

Ratzlaf, 510 U.S. at 141, 114 S. Ct. at 659 (quoting United States v.

Bank of New England, N.A., 821 F.2d 844, 854–59 (1st Cir. 1987)).

40 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc),

the Eleventh Circuit adopted as binding precedent all of the decisions of the

former Fifth Circuit handed down prior to the close of business on September

30, 1981.

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22-13569 Opinion of the Court 47

These decisions, the Court observed, “describe a ‘willful’ actor as

one who violates ‘a known legal duty.’” Id. (quoting United States v.

Sturman, 951 F.2d 1466, 1476–77 (6th Cir. 1991)).

Ratzlaf ’s defense was that he was ignorant of his legal duty.

In upholding his defense, the Court said:

We do not dishonor the venerable principle that ig-

norance of the law generally is no defense to a crim-

inal charge. In particular contexts, however, Con-

gress may decree otherwise. That, we hold, is what

Congress has done with respect to 31 U.S.C. § 5322(a)

and the provisions it controls. To convict Ratzlaf of

the crime with which he was charged, violation of 31

U.S.C. §§ 5322(a) and 5324(3), the jury had to ﬁnd he

knew the structuring in which he engaged was un-

lawful.

Id. at 149 (citations omitted).

iii

The Government could not prove that O’Steen knew of the

ﬁfteen-day reporting period by direct evidence, so it relied on cir-

cumstantial evidence to prove the fact, citing Ratzlaf for the propo-

sition that a “jury may, of course, ﬁnd the requisite knowledge on

defendant’s part by drawing reasonable inferences from the evi-

dence of defendant’s conduct.” See id. at 149 n.19. The Government

points to circumstantial evidence here—and the circumstantial

facts the evidence shows—as proof that O’Steen knew of the re-

porting requirement. The evidence was presented by two

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48 Opinion of the Court 22-13569

witnesses, FBI Agent Craig Castiglia and Jolie Garner, a teller at

O’Steen’s bank.

Agent Castiglia testiﬁed that on May 14, 2019, six days after

the FBI’s public corruption investigation into the State Attorney’s

Oﬃce and Siegmeister’s dealings with O’Steen became overt with

the execution of search warrants and seizure of cellphones,

O’Steen ﬁled a Form 8300 regarding the two $30,000 cash payments

he received from Tong on August 24 and September 4, 2018.

Castiglia identiﬁed the Form 8300.

Agent Castiglia also identiﬁed Government Exhibits 113 and

113AA. Together, the two exhibits established that in April 2013,

O’Steen attended a continuing legal education (“CLE”) course that

included a lecture by Michael Ross, an attorney, entitled “Cutting

Edge Ethics.” Ross’s presentation contained this statement:

If a lawyer gets paid cash do you have to reveal that?

Yes. There are federal laws that say lawyers have to

reveal cash over ten thousand dollars even though it

is very bad for the client to tell the federal government

that you got ten thousand dollars in cash from them.

But you are required by law to do it.

The CLE course lasted two and a half hours. The clip of the above

statement lasted 30 seconds.

Agent Castiglia testiﬁed that O’Steen had an attorney trust

(“IOLTA”) account at his bank. On September 29, 2017, O’Steen

deposited into the account a check written by Joseph Riggs and Jen-

nie Falkenberry in the sum of $20,700. On October 19, 2017,

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22-13569 Opinion of the Court 49

O’Steen wrote two checks on his IOLTA account to David Falken-

berry each in the sum of $9,999.99.

Jolie Garner testiﬁed that on October 19, 2018, O’Steen

came to her teller’s window, deposited $9,900 in cash and then

asked, “How much until the IRS ﬁnds out?” When she attempted

to hand him the Currency Transaction Reporting pamphlet, he re-

fused it and told her he “already knew what it said.” pamphlet

stated that federal law requires institutions to report cash transac-

tions exceeding $10,000. But the pamphlet did not state what fed-

eral law mandated as to the timing of the report.

The District Court found that the jury could have reasonably

inferred from O’Steen’s ﬁling of the Form 8300 immediately after

learning that he was under FBI investigation that he knew that he

had failed to act in conformity with the reporting requirements.

The Government agrees:

The evidence shows that O’Steen was an attorney

with general knowledge about transaction-reporting

requirements, including the requirement to report

cash transactions of over $10,000. The evidence also

shows that O’Steen requested that Tong pay him in

cash. A jury could infer that an attorney who knows

he is required to report cash transactions and who is

paid by his client in cash would know there is a time

limit for reporting the transaction, or at the very least

know that he could not wait eight months to report

it.

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50 Opinion of the Court 22-13569

The circumstantial facts revealed in the testimony of these

witnesses and the documentary evidence they identiﬁed are the

sum and substance of the Government’s proof that O’Steen was

aware on September 7, 2018, of the ﬁfteen-day period he had from

his receipt of $30,000 from Tong on August 23, 2018, in which to

ﬁle a Form 8300 disclosing his receipt of the money. The question

is whether the Government’s proof was enough to permit a jury to

ﬁnd beyond a reasonable doubt that he was aware of the ﬁfteen-

day ﬁling period.

At oral argument, the Government’s attorney had an answer

to the question. She said she “[didn’t] think it [was] necessary . . .

that the Government proved that [O’Steen] knew that there was a

ﬁfteen-day requirement.” Then, assuming that the Government

had to prove that he knew, she oﬀered as circumstantial proof of

O’Steen’s knowledge that he had a “general sense” about the dead-

line because he is a lawyer.

The attorney was, in eﬀect, asking that we take judicial no-

tice that O’Steen was aware of the ﬁling requirement by September

7, 2018. Under Federal Rule of Evidence 201, Judicial Notice of Ad-

judicative Facts, O’Steen’s awareness of the ﬁfteen-day require-

ment qualiﬁes as an adjudicative fact. But we can’t notice it because

it does not qualify as something that “is not subject to reasonable

dispute” on the theory that it is “generally known” or could “be

accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid. 201(b).

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22-13569 Opinion of the Court 51

We therefore conclude that the circumstantial evidence was

insuﬃcient to prove beyond a reasonable doubt that O’Steen knew

of the reporting requirement by September 7, 2018, but failed to

comply with it by that date as alleged in Count Four. The District

Court erred in denying his motion for a judgment of acquittal on

Count Four, and so his conviction on that count is reversed. 41

III. The Disposition of the Appeal

For the reasons stated in reviewing the Count Three Appeal

and the Count Four Appeal, the judgment of the District Court is

reversed. On receipt of our mandate, the Court is instructed to en-

ter a judgment of acquittal for Mr. O’Steen.

REVERSED.

41 Judge Jordan’s well-reasoned concurrence provides helpful additional com-

mentary on the inadequacy of the Government’s evidence. See Jordan Op. at

13–17.

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52 Opinion of the Court 22-13569

APPENDIX A

GOVERNMENT’S REQUESTED JURY INSTRUCTION NO. 15

O70.1, O70.2

Interference with Commerce by Extortion (Actual or Threatened

Fear and Color of Oﬃcial Right) 18 U.S.C. § 1951(a)

As charged in Count Three, it’s a Federal crime to extort

something from someone else and in doing so to obstruct, delay,

or aﬀect interstate commerce.

The Defendant can be found guilty of this crime only if all

the following facts are proved beyond a reasonable doubt:

(1) the Defendant caused a client identiﬁed in the Indictment

to part with property;

(2) the Defendant did so knowingly by using “extortion” or “ex-

tortion under color of oﬃcial right;” and

(3) the extortionate transaction delayed, interrupted, or af-

fected interstate commerce.

“Property” includes money, other tangible things of value,

and intangible rights that are a source or element of income or

wealth.

Extortion” means obtaining property from a person who

consents to give it up because of the wrongful use of actual or

threatened force, violence, or fear. “Fear” means a state of anxious

concern, alarm, or anticipation of harm. It includes the fear of ﬁ-

nancial loss as well as fear of physical violence.

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22-13569 Opinion of the Court 53

“Extortion under color of oﬃcial right” is the wrongful tak-

ing or receipt of money or property by a public oﬃcer who knows

that the money or property was taken or received in return for [do-

ing] [not doing] an oﬃcial act. It does not matter whether or not

the public oﬃcer employed force, threats, or fear. To qualify as an

oﬃcial act, the public oﬃcial must have made a decision or taken

an action, or agreed to make a decision or take an action on a ques-

tion, matter, cause, suit, proceeding, or controversy.

Further, the question, matter, cause, suit, proceeding, or

controversy must involve the formal exercise of governmental

power. It must be similar in nature to a lawsuit before a court, a

determination before an agency, or a hearing before a committee.

It must also be something speciﬁc which requires particular atten-

tion by a public oﬃcial.

The public oﬃcial’s decision or action or agreement to

make a decision or take an action on that question, matter, cause,

suit, proceeding, or controversy may include using his oﬃcial po-

sition to exert pressure on another oﬃcial to perform an oﬃcial

act, or to advise another oﬃcial, knowing or intending that such

advice will form the basis for an oﬃcial act by another oﬃcial. But

setting up a meeting, talking to another oﬃcial, or organizing an

event (or agreeing to do so) – without more – is not an oﬃcial act.

It is not necessary that the public oﬃcial actually make a

decision or take an action. It is enough that he agrees to do so. The

agreement need not be explicit, and the public oﬃcial need not

specify the means he will use to perform his end of the bargain.

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54 Opinion of the Court 22-13569

Nor must the public oﬃcial in fact intend to perform the oﬃcial

act, so long as he agrees to do so.

“Wrongful” means to get property unfairly and unjustly be-

cause the person has no lawful claim to it.

“Interstate commerce” is the ﬂow of business activities be-

tween one state and anywhere outside of that state.

The Government doesn’t have to prove that the Defendant

speciﬁcally intended to aﬀect interstate commerce in any way. But

it must prove that the natural consequences of the acts described

in the Indictment would be to somehow delay, interrupt, or aﬀect

interstate commerce. If you decide that there would be any eﬀect

at all on interstate commerce, then that is enough to satisfy this

element. The eﬀect can be minimal. This element can be met

when the object includes the movement of money between states

and when the origin of the extortionate funds is ﬁctional.

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22-13569 Opinion of the Court 55

APPENDIX B

COURT’S PROPOSED JURY INSTRUCTION NO. 19

Interference with Commerce by Extortion Hobbs Act: Racketeer-

ing (Force or Threat of Force; Color of Oﬃcial Right) 18 U.S.C. §

1951(a)

Count Three charges the Defendant with committing or

aiding and abetting the commission of the substantive oﬀense of

interfering with commerce by extortion. As explained above, it is a

federal crime to extort something from someone else and in doing

so to obstruct, delay, or aﬀect interstate commerce.

The Defendant can be found guilty of this crime only if all

the following facts are proved beyond a reasonable doubt:

(1) the Defendant caused Client B (Andy Tong) to part

with property;

(2) the Defendant did so knowingly by using extortion

or extortion under color of official right; and

(3) the extortionate transaction delayed, interrupted, or

affected interstate commerce.

“Property” includes money, other tangible things of value,

and intangible rights that are a source or part of income or wealth.

“Extortion” means obtaining property from a person who

consents to give it up because of the wrongful use of actual or

threatened force, violence, or fear. “Fear” means a state of anxious

concern, alarm, or anticipation of harm. It includes the fear of fi-

nancial loss as well as fear of physical violence.

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56 Opinion of the Court 22-13569

Extortion under color of official right” is the wrongful taking

or receipt of money or property by a public officer who knows that

the money or property was taken or received in return for doing

an official act. It does not matter whether or not the public officer

employed force, threats, or fear. To qualify as an official act, the

public official must have made a decision or taken an action, or

agreed to make a decision or take an action on a question, matter,

cause, suit, proceeding, or controversy.

Further, the question, matter, cause, suit, proceeding, or

controversy must involve the formal exercise of governmental

power. It must be similar in nature to a lawsuit before a court, a

determination before an agency, or a hearing before a committee.

It must also be something specific which requires particular atten-

tion by a public official.

The public official’s decision or action or agreement to make

a decision or take an action on that question, matter, cause, suit,

proceeding, or controversy may include using his official position

to exert pressure on another official to perform an official act, or to

advise another official, knowing or intending that such advice will

form the basis for an official act by another official. But setting up

a meeting, talking to another official, or organizing an event (or

agreeing to do so) – without more – is not an official act. It is not

necessary that the public official actually make a decision or take

an action. It is enough that he agrees to do so. The agreement need

not be explicit, and the public official need not specify the means

he will use to perform his end of the bargain. Nor must the public

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22-13569 Opinion of the Court 57

official in fact intend to perform the official act, so long as he agrees

to do so.

“Wrongful” means to get property unfairly and unjustly be-

cause the person has no lawful claim to it.

“Interstate commerce” is the flow of business activities be-

tween one state and anywhere outside that state.

The Government does not have to prove that the Defendant

specifically intended to affect interstate commerce in any way. But

it must prove that the natural consequences of the acts described

in the indictment would be to somehow delay, interrupt, or affect

interstate commerce. If you decide that there would be any effect

at all on interstate commerce, then that is enough to satisfy this

element.

The eﬀect can be minimal. This element can be met when

the object includes the movement of money between states and

when the origin of the extortionate funds is ﬁctional.

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58 Opinion of the Court 22-13569

APPENDIX C

GOVERNMENT’S REQUESTED JURY INSTRUCTION NO. 17

Aiding and Abetting; Agency 18 U.S.C. § 2

It’s possible to prove the Defendant guilty of a crime even

without evidence that the Defendant personally performed every

act charged.

Ordinarily, any act a person can do may be done by directing

another person, or “agent.” Or it may be done by acting with or

under the direction of others.

A Defendant “aids and abets” a person if the Defendant in-

tentionally joins with the person to commit a crime.

A Defendant is criminally responsible for the acts of another

person if the Defendant aids and abets the other person. A Defend-

ant is also responsible if the Defendant willfully directs or author-

izes the acts of an agent, employee, or other associate.

But ﬁnding that a Defendant is criminally responsible for the

acts of another person requires proof that the Defendant intention-

ally associated with or participated in the crime – not just proof that

the Defendant was simply present at the scene of a crime or knew

about it.

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22-13569 Opinion of the Court 59

In other words, you must ﬁnd beyond a reasonable doubt

that the Defendant was a willful participant and not merely a

knowing spectator.

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60 Opinion of the Court 22-13569

APPENDIX D

JURY INSTRUCTION NO. 21

You will note that, in Count Three, the Defendant is charged

with aiding and abetting the commission of the alleged crime. It is

possible to prove the Defendant guilty of a crime even without

evidence that the Defendant personally performed every act

charged.

Ordinarily, any act a person can do may be done by directing

another person, or “agent.” Or it may be done by acting with or

under the direction of others. A defendant “aids and abets” a per-

son if the defendant intentionally joins with the person to commit

a crime.

A defendant is criminally responsible for the acts of another

person if the defendant aids and abets the other person. A defend-

ant is also responsible if he willfully directs or authorizes the acts

of an agent, employee, or other associate.

But ﬁnding that the Defendant is criminally responsible for

the acts of another person requires proof that the Defendant inten-

tionally associated with or participated in the crime – not just proof

that the Defendant was simply present at the scene of a crime or

knew about it.

In other words, you must ﬁnd beyond a reasonable doubt

that the Defendant was a willful participant and not merely a

knowing spectator.

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22-13569 Opinion of the Court 61

APPENDIX E

O'STEEN'S REQUESTED JURY INSTRUCTION FOR COUNT

THREE

The Defendant is charged in count three of the indictment

with aiding and abetting violation of Title 18, United States Code

Section 1951(a) in violation of Title 18, United States Code Section

2. Section 1951(a) makes it a Federal crime to extort something

from someone else and in doing so to obstruct, delay, or aﬀect in-

terstate commerce.

The Defendant can be found guilty of this crime only if all

the following facts are proved beyond a reasonable doubt:

(1) Jeﬀrey Alan Siegmeister caused Client B (Andy Tong)

to part with property;

(2) Jeﬀrey Alan Siegmeister did so knowingly by using

extortion under color of oﬃcial right;

(3) the extortionate transaction delayed, interrupted, or

aﬀected interstate commerce; and

(4) the Defendant aided and abetted Siegmeister in do-

ing so.

“Property” includes money, other tangible things of value,

and intangible rights that are a source or element of income or

wealth.

“Extortion under color of oﬃcial right” is the wrongful

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62 Opinion of the Court 22-13569

taking or receipt of money or property by a public oﬃcer who

knows that the money or property was taken or received in return

for doing an oﬃcial act. It does not matter whether or not the pub-

lic oﬃcer employed force, threats, or fear.

To qualify as an oﬃcial act, the public oﬃcial must have

made a decision or taken an action on a question, matter, cause,

suit, proceeding, or controversy. Further, the question, matter,

cause, suit, proceeding, or controversy must involve the formal ex-

ercise of governmental power. It must be similar in nature to a

lawsuit before a court, a determination before an agency, or a hear-

ing before a committee. It must also be something speciﬁc which

requires particular attention by a public oﬃcial.

The public official’s action on that question, matter, cause,

suit, proceeding, or controversy may include using his oﬃcial posi-

tion to exert pressure on another oﬃcial to perform an oﬃcial act,

or to advise another oﬃcial, knowing or intending that such advice

will form the basis for an oﬃcial act by another oﬃcial. But setting

up a meeting, talking to another oﬃcial, or organizing an event (or

agreeing to do so) - without more - is not an oﬃcial act.

“Wrongful” means to get property unfairly and unjustly be-

cause the person has no lawful claim to it.

“Interstate commerce” is the ﬂow of business activities be-

tween one state and anywhere outside of that state. The Govern-

ment doesn't have to prove that the Defendant speciﬁcally in-

tended to aﬀect interstate commerce in any way. But it must prove

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22-13569 Opinion of the Court 63

that the natural consequences of the acts described in the indict-

ment would be to somehow delay, interrupt, or aﬀect interstate

commerce. If you decide that there would be any eﬀect at all on

interstate commerce, then that is enough to satisfy this element.

The eﬀect can be minimal.

Count three charges that the Defendant aided and abetted

Jeﬀrey Alan Siegmeister in committing this crime. Title 18, United

States Code Section 2 makes it a crime to aid and abet another in

the commission of an oﬀense against the United States. It is possi-

ble to prove the Defendant guilty of this crime by aiding and abet-

ting Siegmeister even without evidence that the Defendant person-

ally performed every act charged. Ordinarily, any act a person can

do may be done by directing another person, or “agent.” Or it may

be done by acting with or under the direction of others.

A Defendant “aids and abets” a person if the Defendant in-

tentionally joins with the person to commit a crime. A Defendant

is criminally responsible for the acts of another person if the De-

fendant aids and abets the other person.

A Defendant is also responsible if the Defendant willfully di-

rects or authorizes the acts of an agent, employee, or other associ-

ate. But ﬁnding that a Defendant is criminally responsible for the

acts of another person requires proof that the Defendant inten-

tionally associated with or participated in the crime—not just

proof that the Defendant was simply present at the scene of a

crime or knew about it. In other words, you must ﬁnd beyond a

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64 Opinion of the Court 22-13569

reasonable doubt that the Defendant was a willful participant and

not merely a knowing spectator.

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22-13569 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, joined by LAGOA, Circuit Judge, as to Parts

I, II, and III, Concurring in Part and Concurring in the Judgment.

I join Parts I.A, I.B, I.C, I.E, and I.F.iii of the court’s opinion,

as well as Parts II and III, and otherwise concur in the judgment. I

agree that Mr. O’Steen’s convictions on Counts Three and Four

must be reversed due to insufficient evidence. Although the

court’s rationale as Counts Three and Four is legally sufficient, I

think the discussion should contain additional analysis. I therefore

write separately.

As relevant here, the Hobbs Act, 18 U.S.C. § 1951(a), makes

it a felony for someone to “obstruct[ ], delay[ ], or affect[ ] com-

merce or the movement of any article or commodity in commerce,

by robbery or extortion,” or to “attempt[ ] or conspire[ ]” to do so.

Extortion “means the obtaining of property from another, with his

consent, induced by wrongful use of actual or threatened force, vi-

olence, or fear, or under color of official right.” § 1951(b)(2).

Count Three charged both Mr. Siegmeister and Mr. O’Steen

(correctly or incorrectly) with committing the substantive offense

of extortion under color of official right and through fear of eco-

nomic harm. We have described the color of official right and fear

of economic harm theories of extortion as “alternative means” of

proving a § 1951(a) offense. See United States v. Harris, 916 F.3d 948,

951, 957 (11th Cir. 2019). Count Three also charged Mr. Siegmeis-

ter and Mr. O’Steen (correctly or incorrectly) with aiding and

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2 JORDAN, J., Concurring 22-13569

abetting each other in the commission of the alleged substantive

extortion offense. See 18 U.S.C. § 2. 1

I agree with the court that Count Three was not a model of

good draftsmanship. For example, if the government was going to

charge that Mr. Tong was extorted by color of official right, Mr.

Siegmeister was the only public official who could carry out that

type of extortion. As our sister circuits have recognized, a private

person generally cannot be convicted of the substantive offense of

extortion under color of official right. See Bianchi v. United States,

219 F.2d 182, 193–94 (8th Cir. 1955); United States v. Kenny, 462 F.2d

1205, 1229 (3d Cir. 1972); United States v. McLain, 934 F.2d 822, 831

(7th Cir. 1991); United States v. Tomblin, 46 F.3d 1369, 1383 (5th Cir.

1993); United States v. Saadey, 393 F.3d 669, 674 (6th Cir. 2005). Ac-

cordingly, only Mr. Siegmeister should have been charged with the

substantive offense of extortion under color of official right. And

Mr. O’Steen could only have been charged with aiding and abetting

Mr. Siegmeister’s extortion under color of official right. See, e.g.,

United States v. Collins, 78 F.3d 1021, 1031 (6th Cir. 1996) (citing

cases from the Second, Fourth, and Fifth Circuits and explaining

1 Count Three also contained boilerplate language stating that Mr. Siegmeister

and Mr. O’Steen attempted to commit extortion, but the jury was not in-

structed on attempt and the government did not ask the jury to convict Mr.

O’Steen on an attempt theory with regard to his representation of Mr. Tong.

See D.E. 174 at 9–21 (government’s closing argument on Count Three); D.E.

247 at 54 (jury instructions: “Count Three charges the defendant with com-

mitting or aiding and abetting the commission of the substantive offense of

interfering with commerce by extortion.”).

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22-13569 JORDAN, J., Concurring 3

that “a private person can be convicted of aiding and abetting a

public official who extorts under color of official right”). 2

As the court notes, the jury found Mr. O’Steen guilty of

Count Three. On the verdict form the jury indicated that it found

that he had committed both extortion and extortion under color of

official right.

In his Rule 29 motion as to Count Three, Mr. O’Steen ar-

gued that there can be no substantive extortion offense under

§ 1951(a)—under either theory—if all of the money taken from the

victim was provided by a government law enforcement agency like

the FBI. Here is what Mr. O’Steen told the district court:

As to Counts Two and Three, the Hobbs Act requires

. . . [that] the extortion must be of property . . . ob-

tained from the victim. The property was the $60,000

sting money the government provided. And this is

not a preservation-only argument; this is an argument

for your consideration. I did a diligent search, Judge.

I could not find any case law on this. My argument is

that the property for extortion for [the] Hobbs Act

must be actual property of the victim. And I could

2 In its closing argument the government did not mention the color of official

right theory and asserted that Mr. Siegmeister had aided and abetted Mr.

O’Steen’s extortion of Mr. Tong. See, e.g., D.E. 174 at 16–17 (“[Mr.] Siegmeis-

ter knew the amount that [Mr.] O’Steen stood to gain. And he agreed to help

his friend and his former colleague who helped him get the elected position

extract that $60,000 from [Mr.] Tong.”).

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4 JORDAN, J., Concurring 22-13569

find no law to the contrary. That would only be as to

Counts Two and Three.

D.E. 170 at 8–9.

The district court rejected this argument at the end of trial.

It explained that the “Hobbs Act defines extortion as obtaining

property from another. It doesn’t say that it has to be property

belonging to that person or belonging to another. It’s just obtain-

ing property from another. . . . I didn’t find any case law that pre-

sented the formulation of the elements of Hobbs Act extortion to

require that the property to be taken be the property belonging to

the [victim].” D.E. 172 at 5–6 (relying in part on United States v.

Eaves, 877 F.2d 943 (11th Cir. 1989)).

In his initial brief, Mr. O’Steen mentions this argument

again, though briefly: “In this case, the Government’s evidence

failed to establish that Mr. O’Steen’s [acquisition] of Mr. Tong’s

property was induced by the wrongful use of fear of economic

harm. As a preliminary matter, Mr. Tong had no fear of losing the

$60,000 that was paid to Mr. O’Steen. The $60,000 was not Mr.

Tong’s money—it was the FBI’s money.” Appellant’s Br. at 30.

Because “we liberally read briefs to ascertain the issues

raised on appeal,” United States v. Starke, 62 F.3d 1374, 1379 (11th

Cir. 1995), I agree with the court that Mr. O’Steen sufficiently pre-

sented the issue in his brief. See Silva v. Dos Santos, 68 F.4th 1247,

1259 n.11 (11th Cir. 2023) (per curiam); Cole v. U.S. Att’y Gen., 712

F.3d 517, 530–31 (11th Cir. 2013), abrogated on other grounds by

Nasrallah v. Barr, 590 U.S. 573 (2020). He did not present any

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22-13569 JORDAN, J., Concurring 5

authorities in support, but that is understandable given that no one

was able to find any cases on point.

The “relevant question” for sufficiency “is whether, after

viewing the evidence in the light most favorable to the prosecu-

tion, any rational trier of fact could have found the essential ele-

ments of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). I turn now to whether a substantive ex-

tortion offense under § 1951(a) can be proven when the money the

victim gives to the defendant comes completely from the FBI.

Under the Hobbs Act, “[o]btaining property requires ‘not

only the deprivation but also the acquisition of property.’ That is,

it requires that the victim ‘part with’ his property, and that the ex-

tortionist ‘gain possession’ of it[.]” Sekhar v. United States, 570 U.S.

729, 734 (2013) (citations omitted).

We have held that “a substantive Hobbs Act violation re-

quires an actual eﬀect on interstate commerce,” while explaining

that the “requisite eﬀect on interstate commerce need not be sub-

stantial—all that is required is minimal impact.” United States v.

Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001) (citation omitted).

Though the “Hobbs Act usually is applied to robberies of busi-

nesses, criminal acts directed toward individuals also may violate

the Hobbs Act.” Id. “Robberies or extortions perpetrated upon

individuals are prosecutable under the Hobbs Act when any one of

the following three conditions are met: (1) the crime depletes the

assets of an individual who is directly engaged in interstate

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6 JORDAN, J., Concurring 22-13569

commerce; (2) the crime causes the individual to deplete the assets

of an entity engaged in interstate commerce; or (3) the number of

individuals victimized or the sums involved are so large that there

will be a cumulative impact on interstate commerce.” Id. at 1084–

85 (citation omitted).

The parties and the district court indicated that they were

unable to ﬁnd any cases addressing whether the government can

prove a substantive extortion oﬀense under § 1951(a) when all of

the money given by the victim to the defendant is completely pro-

vided by the government. There is, however, a Sixth Circuit case

directly on point.

In United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989),

a city attorney and city ﬁre chief were convicted of both conspiracy

to commit extortion and the substantive oﬀense of extortion. They

had demanded payment from a local lawyer to facilitate the placing

of propane tanks within the city limits by that lawyer’s client. The

lawyer and his client told the FBI about the demand, and the FBI

provided them with $30,000. The lawyer and the client then gave

the $30,000 to the city attorney and the city ﬁre chief. No funds

given to the city attorney and the city ﬁre chief came from the as-

sets of the lawyer, his client, or the client’s company. See id. at

1059–60.

The Sixth Circuit aﬃrmed the conspiracy convictions of the

defendants but set aside their substantive extortion convictions.

Because all of the money given to the defendants came from the

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22-13569 JORDAN, J., Concurring 7

FBI, the requisite eﬀect on commerce needed for a substantive vio-

lation of § 1951(a) violation was missing:

In order to be punishable as a substantive vio-

lation of the Hobbs Act, an extortionate scheme must

have at least a de minimis eﬀect on interstate com-

merce. This is not a heavy burden, but we conclude

that this is one of the rare cases where a de minimis

eﬀect on commerce cannot be found.

The de minimis test clearly would have been

satisﬁed if Glaub [the lawyer’s client] had paid the

bribe with the assets of Atlas Gas—a business in inter-

state commerce. However, Glaub used neither his

own funds nor those of the company; instead, the

bribe money was provided by the FBI. The govern-

ment now argues that the payment of $30,000 in FBI

funds aﬀected interstate commerce by temporarily

depleting the funds available to the agency. But while

courts have found actual violations of the Hobbs Act

where the defendant dealt with an FBI-created busi-

ness, the mere receipt of government funds has never

been enough to establish an actual eﬀect on interstate

commerce.

Id. at 1060 (citations and footnotes omitted). In response to the

government’s protest that such a ruling “would hamper law en-

forcement by requiring victims to use their own money even when

cooperating with the authorities,” the Sixth Circuit explained that

in cases where the FBI (or another law enforcement agency) pro-

vides all of the money that is paid by the victim, the government

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8 JORDAN, J., Concurring 22-13569

can charge the defendant with attempt to commit extortion. See

id. at 1061.

A number of other circuits, in the course of upholding con-

victions for conspiracy to commit extortion or attempted extortion

where the money paid by the victim was completely provided by a

law enforcement agency, have agreed with the reasoning in DiCar-

lantonio. Their decisions explain that, unlike a substantive extor-

tion oﬀense, the inchoate extortion oﬀenses of conspiracy and at-

tempt can be charged and proven even where the government pro-

vides all of the money that the victim gives to the defendant. See

United States v. Jannotti, 673 F.2d 578, 591–94 (3d Cir. 1982) (en banc)

(conspiracy); United States v. Shields, 999 F.2d 1090, 1097–98 (7th Cir.

1993) (attempt); United States v. Foster, 443 F.3d 978, 983–84 (8th Cir.

2006) (attempt); United States v. Watkins, 691 F.3d 841, 849–50 (6th

Cir. 2012) (attempt).

Our cases likewise diﬀerentiate between inchoate and sub-

stantive extortion oﬀenses. See, e.g., United States v. Carcione, 272

F.3d 1297, 1300 n.5 (11th Cir. 2001) (explaining that, when the

charge is conspiracy to commit extortion under the Hobbs Act,

“the interstate nexus may be demonstrated by evidence of poten-

tial impact on interstate commerce, or by evidence of actual de min-

imis impact,” but a “substantive violation of the Hobbs Act requires

an actual, de minimis [e]ﬀect on commerce”). As far as I can tell

from my own research, no circuit has upheld a substantive Hobbs

Act conviction where the money given to the defendant was wholly

provided by a law enforcement agency.

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22-13569 JORDAN, J., Concurring 9

The Sixth Circuit’s decision in DiCarlantonio is persuasive

and makes sense to me. The jurisdictional hook of § 1951(a) is an

eﬀect on commerce. See Stirone v. United States, 361 U.S. 212, 218

(1961) (“The charge that interstate commerce is aﬀected is critical

since the Federal Government’s jurisdiction of this crime [extor-

tion] rests only on that interference.”). And a substantive extortion

oﬀense requires proof of an actual (albeit a de minimis) eﬀect on

commerce. See Diaz, 248 F.3d at 1084; Carcione, 272 F.3d at 1300

n.5. Extortion, moreover, “requires that the victim ‘part with’ his

property, and that the extortionist ‘gain possession’ of it.” Sekhar,

570 U.S. at 734 (emphasis added).

If an agency like the FBI provides all of the money that the

victim gives to the defendant, it cannot be said that the charged

extortion “depletes the assets of an individual who is directly en-

gaged in interstate commerce” or “causes the individual to deplete

the assets of an entity engaged in interstate commerce.” Diaz, 248

F.3d at 1084–85. Because the FBI gave Mr. Tong the money he then

paid to Mr. O’Steen, the government’s evidence on Count Three

was insuﬃcient as a matter of law.3

3 The district court observed that the text of § 1951(b)(2) (“the obtaining of

property from another”) does not require that the property provided to the

defendant belong to the victim himself. It may be that, for a substantive ex-

tortion offense, the money or property paid to the defendant can come from

a third party or intermediary and not the victim himself. But the Eleventh

Circuit cases cited in the text require an actual (if de minimis) effect on com-

merce for a substantive Hobbs Act violation, and there is no effect on

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10 JORDAN, J., Concurring 22-13569

The district court, in denying Mr. O’Steen’s Rule 29 motion

on Count Three, relied in part on the Eleventh Circuit’s decision in

Eaves, 877 F.2d at 946. That reliance, though understandable, was

misplaced.

In Eaves the defendant, a county commissioner, was con-

victed of three Hobbs Act violations (Counts One, Three, and

Four) for receiving several payments in exchange for his favorable

vote on matters that came before the county commission. Some of

the money paid to the defendant came from the victim, and some

came from the FBI. See 877 F.2d at 944–45.

Count One in Eaves charged the defendant with receiving

$5,000 from the victim’s own funds. See 877 F.2d at 945 (“On June

19, Al Johnson [the intermediary of the victim, Charles Wood] paid

Eaves [the defendant] $5,000 in cash. . . . Count [One] charged that

Eaves accepted a $5,000 payment from Charles Wood.”). When

the defendant contested the guilty verdict on Count One, the Eaves

panel rejected the challenge and explained that the jurisdictional

nexus had been established. There had been an actual de minimis

eﬀect on commerce because the victim (and/or his company) had

made a number of payments to the defendant, including a payment

of $5,000. See id. at 946.

commerce if only the government’s money or property is given to the defend-

ant. See Diaz, 248 F.3d at 1084–85.

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22-13569 JORDAN, J., Concurring 11

The defendant in Eaves also argued that there was insuﬃ-

cient evidence on Counts Three and Four because the entire “pro-

ject” presented to him for his vote was ﬁctitious, and as a result

there could be no eﬀect on commerce. The panel turned aside this

argument as well, reasoning that Counts Three and Four charged

the defendant with the inchoate oﬀense of attempted extortion.

See id. (“This argument has been soundly rejected and we follow

suit.”). The panel cited a prior Eleventh Circuit case, United States

v. Holmes, 767 F.2d 820, 823, 824–25 (11th Cir. 1985), which had up-

held a real estate agent’s convictions for conspiracy to commit ex-

tortion and attempted extortion where an FBI agent had posed as

a ﬁctitious victim for a fake development project and was told that

he had to funnel money to the city mayor through the real estate

agent. See Eaves, 877 F.2d at 946. 4

Our decision in Eaves is consistent with the Sixth Circuit’s

decision in DiCarlantonio. The substantive Hobbs Act convictions

in both cases were supported by evidence that the victim had paid

the defendant from his own funds, and as a result there was an ac-

tual (if de minimis) eﬀect on commerce. See DiCarlantonio, 870 F.2d

at 1060–61; Eaves, 877 F.2d at 944–46.

4 The panel in Holmes said that “[t]he fact that the FBI undercover agent rep-

resented a fictitious business entity is not a defense to an extortion charge.”

767 F.2d at 824. But language in cases must always be read in light of the facts

presented. The statement quoted above applies only to the inchoate Hobbs

Act offenses at issue in that case (i.e., conspiracy and attempt), and does not

extend to substantive extortion offenses.

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12 JORDAN, J., Concurring 22-13569

As a reminder, Count Three charged Mr. Siegmeister and

Mr. O’Steen with a substantive extortion oﬀense relating to Mr.

Tong (and the aiding and abetting of that oﬀense), but not with

conspiracy to commit extortion or attempted extortion. Given that

a substantive extortion oﬀense requires an actual (if de minimis) ef-

fect on commerce, such an oﬀense cannot be proven when all of

the money the victim paid to the defendant was provided by the

FBI. See DiCarlantonio, 870 F.2d at 1060. Application of this princi-

ple leads to the inevitable conclusion that the evidence on Count

Three was legally insuﬃcient because the $60,000 that Mr. Tong

gave to Mr. O’Steen was provided by the FBI. Mr. O’Steen may

have behaved badly, or unethically, but under DiCarlantonio he is

entitled to a judgment of acquittal on Count Three. 5

5 I recognize that Mr. O’Steen has only requested a new trial on Count Three.

See Appellant’s Br. at 14, 56. But his requested remedy does not limit our au-

thority to rule that he is entitled to a judgment of acquittal on Count Three.

See 28 U.S.C. § 2106 (“The Supreme Court or any other court of appellate ju-

risdiction may affirm, modify, vacate, set aside or reverse any judgment, de-

cree, or order of a court lawfully brought before it for review, and may remand

the cause and direct the entry of such appropriate judgment, decree, or order,

or require such further proceedings to be had as may be just under the circum-

stances.”). See Bryan v. United States, 175 F.2d 223, 229 (5th Cir. 1949) (per cu-

riam) (on rehearing) (relying in part on § 2106 to enter judgments of acquittal

in favor of the defendant in a criminal case after initially remanding for a new

trial).

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22-13569 JORDAN, J., Concurring 13

I also agree with the court that Mr. O’Steen’s conviction on

Count Four must be set aside due to insufficient evidence. But I

think the government’s evidence is even weaker than the court in-

dicates.

Count Four charged Mr. O’Steen with violating 31 U.S.C.

§§ 5331 & 5322 by willfully failing to file a Form 8300 with the Fi-

nancial Crimes Enforcement Network within 15 days of receiving

the $60,000 in currency from Mr. Tong. See 31 C.F.R.

§ 1010.330(e)(1) (incorporating the 15-day filing requirement from

26 C.F.R. § 1.6050I-1(e)(1)). Critically, the underlying criminal stat-

ute requires a showing of willfulness. See 31 U.S.C. § 5322(a)–(b)

(both subsections using the phrase “willfully violating”).

Mr. O’Steen moved for a judgment of acquittal on Count

Four, arguing in part that the government failed to prove beyond

a reasonable doubt that he knew about the 15-day filing require-

ment. See D.E. 170 at 10–12, 14–15. And he now makes that same

argument on appeal. See Appellant’s Br. at 44–49.

The evidence at trial showed that Mr. O’Steen filed a Form

8300 eight months after the receipt of the money. The Count Four

violation, therefore, was not based on a complete failure to file the

Form 8300; it was instead based on the failure to file the Form 8300

within the 15-day window prescribed by the applicable regulation.

As the court explains, the government had to prove—by di-

rect or circumstantial evidence—that Mr. O’Steen knew about the

15-day requirement. See United States v. Granda, 565 F.2d 922, 925–

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14 JORDAN, J., Concurring 22-13569

26 (5th Cir. 1978) (holding that the former 31 U.S.C. §§ 1058 &

1101, which mandated that travelers transporting or receiving

more than $5,000 in currency file a report with the government,

and which established criminal penalties for those who willfully

failed to file such a report, “require[d] proof of the defendant’s

knowledge of the reporting requirement and his specific intent to

commit the crime”). Indeed, the jury instructions here explained

the 15-day filing requirement as set out in the regulations, and re-

quired the government to prove, among other things, that Mr.

O’Steen “acted willfully,” i.e., that “he had knowledge of the cur-

rency transaction reporting requirements and failed to file a Form

8300 for the purpose of evading those requirements.” D.E. 247 at

59–60.

The government, in my view, may have presented sufficient

evidence that Mr. O’Steen knew at some point that he had to re-

port the receipt of more than $10,000 in currency. For example,

Mr. O’Steen filed a Form 8300, albeit months after receipt of the

cash from Mr. Tong. And he attended a CLE course where partic-

ipants were told that attorneys had to report cash payments of over

$10,000.

But the government did not prove beyond a reasonable

doubt that Mr. O’Steen knew that he had to submit the Form 8300

within 15 days of receipt of the cash from Mr. Tong. It did not show,

in other words, that he “acted with knowledge of the reporting re-

quirements.” Granda, 565 F.2d at 926. As set out below, the cir-

cumstantial evidence presented by the government was,

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22-13569 JORDAN, J., Concurring 15

individually and collectively, woefully insufficient with respect to

Mr. O’Steen’s knowledge of the 15-day filing requirement.

First, the excerpt the government presented from the CLE

course Mr. O’Steen attended says nothing whatsoever about the

15-day filing requirement. Those who attended the course were

told only that they had to report cash receipts of over $10,000.

They were not told when those reports had to be made. See Court

Ex. 113A. If the CLE course did not alert attendees about the 15-

day filing requirement, Mr. O’Steen could not have learned about

that requirement from the course. A “jury may infer knowledge

and criminal intent from circumstantial evidence alone,” but the

inference must be reasonable and cannot be based on “mere spec-

ulation.” United States v. Duenas, 891 F.3d 1330, 1334 (11th Cir.

2018).

Second, the jury could not reasonably find that Mr. O’Steen

knew about the 15-day filing requirement based on evidence that

(a) he wrote two checks for $9,999.99 to the same payee; and (b) he

deposited $9,900 in cash and asked the teller how long before the

government found out. These transactions are relevant to the ob-

ligation of a bank to file a currency transaction report when a cus-

tomer executes a transaction involving more than $10,000. See 31

U.S.C. §§ 5313 & 5324(a); 31 C.F.R. § 1010.311. They do not con-

cern the separate obligation of a person (like Mr. O’Steen) involved

in a trade or business to report cash receipts of over $10,000 to the

Financial Crimes Enforcement Network. Although a customer

cannot knowingly and willfully structure his financial transactions

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16 JORDAN, J., Concurring 22-13569

to cause a bank to not file a currency transaction report, see United

States v. Bird, 79 F.4th 1344, 1346–47 (11th Cir. 2023), Mr. O’Steen

was not charged in Count Four with structuring. He was charged

only with failing to file a Form 8300 within 15 days of receiving the

money from Mr. Tong.

Third, Mr. O’Steen’s refusal of a pamphlet containing infor-

mation about currency transaction reports—offered to him by a

bank teller—cannot save the guilty verdict on Count Four. Mr.

O’Steen, according to the teller, declined the pamphlet because he

said he knew what was in it. But this pamphlet only explained a

bank’s obligation to file a currency transaction report and did not

discuss the separate obligation of a person like Mr. O’Steen to file

a Form 8300 with the Financial Crimes Enforcement Network. See

Court Ex. 104. So when Mr. O’Steen told the teller that he knew

what was in the pamphlet, the most that can be inferred from that

statement is that he knew about a bank’s obligation to file a currency

transaction report when a customer executes a transaction involv-

ing more than $10,000.

Fourth, the fact that Mr. O’Steen filed an untimely Form

8300 eight months after he received the money from Mr. Tong can-

not (alone or in combination) prove his knowledge of the 15-day

filing requirement at the time of receipt. To conclude otherwise

would mean that a jury could always infer knowledge of the 15-day

filing requirement from an untimely filing. Such an inference

would be based on “mere speculation” and would therefore be un-

reasonable. See Duenas, 891 F.3d at 1334.

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22-13569 JORDAN, J., Concurring 17

Taken collectively, all of this circumstantial evidence fares

no better. As the D.C. Circuit has said in a different context, “in

law as in mathematics zero plus zero equals zero.” Henderson v.

Kennedy, 253 F.3d 12, 19 (D.C. Cir. 2001).

III

I agree that we must set aside Mr. O’Steen’s convictions on

Counts Three and Four for lack of sufficient evidence.

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22-13569 TJOFLAT, J., Specially Concurring 1

TJOFLAT, Circuit Judge, specially concurring:

I write separately to provide an additional rationale for re-

versal on Count Three.

On appeal, O’Steen argues that the Government failed to

prove that he obtained $60,000 of Tong’s money “with his consent,

induced by wrongful use of actual or threatened . . . fear.” 18 U.S.C.

§ 1951(a) (Count 3). Speciﬁcally, the Government failed to prove

that Tong consented to give him $60,000 because of his wrongful

use of actual or threatened force, violence, or fear. 1 The Govern-

ment’s response is that O’Steen’s request for an additional $60,000

was wrongful because the fee was excessive and impermissibly con-

tingent in violation of the Rules Regulating the Florida Bar.2

The Supreme Court and Courts of Appeals have spoken to

the meaning of the word “wrongful” in Hobbs Act extortion. In

United States v. Enmons, union members were striking and using

physical violence to force their employer to agree to a contract call-

ing for higher wages and beneﬁts. 410 U.S. 396, 397–398, 93 S. Ct.

1007, 1008 (1973). They were charged with Hobbs Act conspiracy

to obtain property wrongfully by force or violence. Id. The District

1 “‘Fear’ means a state of anxious concern, alarm, or anticipation of harm. It

includes the fear of financial loss.” The District Court’s Instruction No. 19, in

defining “extortion,” adopted the definition set out in Eleventh Circuit Pattern

Jury Instruction O70.1.

I have diﬃculty envisioning a Hobbs Act prosecution based on a lawyer’s

charging of a contingent fee, no matter the amount. I therefore treat an “ex-

cessive and impermissibly contingent” fee as an “excessive” fee.

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2 TJOFLAT, J., Specially Concurring 22-13569

Court dismissed the charge. Id. at 398, 93 S. Ct. at 1008–09. In its

view,

[i]f “the wages sought by violent acts are wages to be

paid for unneeded or unwanted services, or for no ser-

vices at all,” then that violence would constitute ex-

tortion within the meaning of the Hobbs Act. But in

this case, by contrast, . . . the indictment alleged the

use of force to obtain legitimate union objectives:

“The union had a right to disrupt the business of the

employer by lawfully striking for higher wages. . . . To

punish persons for such acts of violence was not the

purpose of the Hobbs Act.”

Id.

In aﬃrming the dismissal, the Supreme Court emphasized

that the use of force, violence, or fear to obtain property must be

“wrongful” to constitute Hobbs Act extortion. Id. at 399–400, 93 S.

Ct. at 1009–10. The Court explained that “‘wrongful’ has meaning

in the Act only if it limits the statute’s coverage to those instances

where the obtaining of the property would itself be ‘wrongful’ be-

cause the alleged extortionist has no lawful claim to that property.”

Id. (emphasis added). The Court reasoned that the union’s actions

in that case did not violate the Hobbs Act, because the union

sought “to achieve legitimate union objectives, such as higher

wages in return for genuine services which the employer seeks.” Id.

In Brokerage Concepts, the Third Circuit interpreted Enmons

to hold “that a defendant is not guilty of extortion if he has a lawful

claim to the property obtained.” Brokerage Concepts, Inc. v. U.S.

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22-13569 TJOFLAT, J., Specially Concurring 3

Healthcare, Inc., 140 F.3d 494, 523 (3d Cir. 1998). The Court high-

lighted cases in which “the defendant is legally entitled to the prop-

erty obtained from the victim since he has provided real value in

exchange for that property, and the victim has no preexisting right

to be free of the fear he is quelling in return for his payment to the

defendant.” Id. at 525.

In Rennell, a case alleging the wrongful termination of a

joint-venture agreement, the Seventh Circuit similarly based its

analysis on whether the defendant had a “claim of right” to the

purported victim’s property:

If a defendant has no claim of right to the property,

the use of fear to obtain that property—including the

fear of economic loss—may also amount to extor-

tion. In contrast, where the defendant has a claim of

right to property and exerts economic pressure to ob-

tain that property, that conduct is not extortion and

no violation of the Hobbs Act has occurred.

Rennell v. Rowe, 635 F.3d 1008, 1012 (7th Cir. 2011).

The Third Circuit found that Rennell’s extortion claim was

not valid, because Rowe “had a right to terminate the joint-venture

agreement” and “was engaged in nothing more than unpleasant

hard dealing.” Id. at 1013–14. In the Court’s view, if Rennell

thought Rowe’s conduct was unlawful, Rennell had easy recourse

through state-law tort and contract claims:

We realize that Rennell believes that Rowe dealt badly

with him. We take Rennell at his word that Rowe's

actions amounted to economic duress. Rowe may

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4 TJOFLAT, J., Specially Concurring 22-13569

also have breached his duties under the contracts and

acted in violation of the general duty of good faith

and fair dealing, among other things. But those claims

should be pursued through state-law theories of con-

tract and, perhaps, tort—not civil RICO. We note as

well that Rennell's state-law claims are still alive, be-

cause the district court dismissed them without prej-

udice when it relinquished its supplementary jurisdic-

tion. The state courts are the right place to sort out

this business dispute.

Id. at 1014.

Therefore, in my view, Count Three presents a breach of

contract claim as an extortion claim and a Hobbs Act violation. The

claim is rooted in a contract, the Retainer Agreement between

O’Steen and Tong. Tong agreed to pay O’Steen “a reasonable fee

for [the] work” O’Steen had undertaken to perform. The parties

contemplated that the $5,000 retainer Tong paid would probably

be insuﬃcient to cover the work, so the Agreement gave O’Steen

the right to charge Tong “an additional fee.” 3 And Tong had an ob-

ligation to pay an additional fee if the fee was “reasonable.” In ex-

ercising his right to charge an additional fee and in representing

Tong, O’Steen was governed by “the rules regulating the Florida

Bar,” which included the rules Scott Richardson cited. Tong consid-

ered an additional fee of $60,000 unreasonable.

3 The Retainer Agreement states: “This engagement fee is only a minimum

fee and . . . an additional fee may be charged should the cost of services ren-

dered exceed the retainer amount,” $5,000.

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22-13569 TJOFLAT, J., Specially Concurring 5

Like Rennell, who believed that Rowe had infringed his

contract rights and caused him economic harm, Tong believes that

O’Steen infringed his contract rights and caused him economic

harm. And like Rennell, he can seek relief in state-law tort and con-

tact actions. In fact, Tong has already taken that step, invoking di-

versity jurisdiction in the District Court below and suing O’Steen

for legal malpractice. According to Scott Richardson, he can at least

par

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