United States v. Timothy Jermaine Pate

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-10545

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY JERMAINE PATE,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 1:18-cr-00045-RSB-BWC-1

____________________

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2 Opinion of the Court 20-10545

Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,

ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,

BRASHER, and ABUDU, Circuit Judges.

NEWSOM, Circuit Judge, delivered the opinion of the Court, in

which WILLIAM PRYOR, Chief Judge, WILSON, JORDAN, ROSENBAUM,

JILL PRYOR, LUCK, and ABUDU, Circuit Judges, joined, and in which

BRASHER, Circuit Judge, joined in part.

ROSENBAUM, Circuit Judge, filed a concurring opinion, in which

WILLIAM PRYOR, Chief Judge, and NEWSOM, Circuit Judge, joined.

BRASHER, Circuit Judge, filed an opinion concurring in part.

GRANT, Circuit Judge, filed a dissenting opinion in which BRANCH

and LAGOA, Circuit Judges, joined.

LAGOA, Circuit Judge, filed a dissenting opinion, in which BRANCH

and GRANT, Circuit Judges, joined.

NEWSOM, Circuit Judge:

Timothy Pate, who sometimes goes by the name “Akenaten

Ali” and has described himself as an “heir to the kingdom of Mo-

rocco,” filed liens against property owned by a slew of people he

thought had wronged him—including, as relevant here, a former

Commissioner of the IRS and a former Secretary of the Treasury.

Pate was thereafter charged with and convicted of violating 18

U.S.C. § 1521, which criminalizes the filing of retaliatory liens

against the property of “an individual described in” 18 U.S.C.

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20-10545 Opinion of the Court 3

§ 1114, which, in turn, refers to “any officer or employee of the

United States.”

To resolve Pate’s appeal, we must decide whether a former

civil servant counts as an “officer or employee of the United States”

within the meaning of § 1114 and, thus, of § 1521. We hold that

the answer is no. Accordingly, we vacate Pate’s convictions on

four counts and remand for resentencing.

I

A

Timothy Pate didn’t file any federal income-tax returns in

2011. Or in 2012. Or in 2013 or 2014. In 2015, though, he filed a

return in which he reported no wages or salary but $4.5 million in

taxable interest income—and claimed a refund in the amount of

$2.7 million. The IRS warned him that his frivolous return could

lead to a $10,000 fine. Apparently undeterred, Pate filed similarly

frivolous returns in the ensuing years. He also claimed millions of

dollars in refunds on those returns and refused to pay the penalties

that he had racked up along the way.

Pate’s frustration with the IRS led him to sue then-Commis-

sioner John Koskinen in federal district court. In his complaint,

Pate insisted that he wasn’t an American citizen and that the IRS

owed him money. He also threatened to file liens against anyone

who opposed his efforts to collect.

Pate made good on that threat. According to the indictment

here, he filed 16 liens against current and former government

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4 Opinion of the Court 20-10545

officials. Four of those liens underlie this appeal. In 2018, months

after Koskinen had completed his tenure as IRS Commissioner,

Pate filed two $33 million liens against his property. Pate also filed

two $15 million liens against the property of the former Secretary

of the Treasury, Jacob Lew. Like Koskinen, Lew had wrapped up

his time in office in 2017, months before Pate filed the liens. The

district court dismissed Pate’s civil suit, declared his liens null and

void, expunged them from the record, and enjoined him from filing

any more.

B

A grand jury later indicted Pate on 21 counts—16 of them

for filing false retaliatory liens against federal officials in violation

of 18 U.S.C. § 1521. The government’s case took three days, in-

cluded 16 witnesses, and featured 136 exhibits. Pate didn’t put on

a defense. He did, however, move for a directed verdict on the

four § 1521 counts involving Koskinen and Lew, arguing that be-

cause they “were not public officials at the time that the . . . false

lien[s were] filed . . . as required by the statute,” he couldn’t be law-

fully convicted under § 1521. In response, the government argued

that it would be “ridiculous” if the criminality of Pate’s conduct

turned on the timing of his victims’ retirements.

The district court wrestled at some length with Pate’s argu-

ment, which, it said, was “not by any stretch . . . frivolous.” Ulti-

mately, though, the court concluded (1) that § 1521’s language pro-

hibits filing liens against even a former officer or employee “on ac-

count of the performance of [his] official duties” and (2) that a

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reasonable jury could conclude that Pate filed the liens against

Koskinen and Lew “on account of” their governmental duties. Ac-

cordingly, the district court denied Pate’s motion for a directed ver-

dict. The jury went on to find Pate guilty on all 21 counts, and the

court sentenced him to 300 months in prison.

Pate timely appealed to this Court challenging his § 1521

convictions related to Koskinen and Lew, arguing—as he did be-

fore the district court—that because they weren’t officers or em-

ployees of the United States at the time that he filed liens against

their property, the statute didn’t criminalize his conduct. A divided

panel rejected Pate’s position and affirmed his convictions, holding

that § 1521 covers both current and former federal officers and em-

ployees. See United States v. Pate, 43 F.4th 1268, 1269 (11th Cir.

2022). A majority of the active judges of this Court subsequently

voted to vacate the panel’s opinion and rehear the case en banc, see

United States v. Pate, 56 F.4th 1336, 1337 (11th Cir. 2023), and we

directed the parties to address the following question: “Does 18

U.S.C. § 1521 apply to false liens filed against former federal officers

or employees for official duties they performed while in service

with the federal government?”

II

Before us, Pate renews his challenges to the § 1521 convic-

tions pertaining to Koskinen and Lew, again contending that be-

cause they were no longer officers or employees of the United

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6 Opinion of the Court 20-10545

States at the time he filed liens against their property, the statute is

inapplicable. For the reasons that follow, we agree with him.1

A

We begin with the statute of conviction, 18 U.S.C. § 1521,

which states, in relevant part, that

[w]hoever files . . . any false lien or encumbrance

against the real or personal property of an individual

described in section 1114, on account of the perfor-

mance of official duties by that individual, knowing

or having reason to know that such lien or encum-

brance is false . . . shall be fined under this title or im-

prisoned for not more than 10 years, or both.

18 U.S.C. § 1521.

By its terms, § 1521 prescribes three necessary conditions to

criminal liability: first, the defendant must have filed a “false lien or

encumbrance” that he “kn[ew] or ha[d] reason to know” was false;

second, he must have filed it against the property of “an individual

described in section 1114”; and third, he must have done so “on

account of” that individual’s performance of official duties. Pate

doesn’t dispute the first or third conditions—that the liens he filed

against Koskinen’s and Lew’s property were “false” or that he filed

them “on account of” Koskinen’s and Lew’s performance of their

1 “Whether a defendant can properly be prosecuted for a violation of a partic-

ular statute is a question of law subject to de novo review by this court.” United

States v. Kirkland, 12 F.3d 199, 202 (11th Cir. 1994) (per curiam).

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official duties. He does deny, however, that § 1521’s second condi-

tion is satisfied—Koskinen and Lew, he insists, are not “individ-

ual[s] described in section 1114.”

To understand that reference, we turn to 18 U.S.C. § 1114.

As amended and streamlined in 1996, that provision reads as fol-

lows:

Whoever kills or attempts to kill any officer or em-

ployee of the United States or of any agency in any

branch of the United States Government (including

any member of the uniformed services) while such

officer or employee is engaged in or on account of the

performance of official duties, or any person assisting

such an officer or employee in the performance of

such duties or on account of that assistance, shall be

punished . . . .

18 U.S.C. § 1114; see also United States v. Feola, 420 U.S. 671, 679–82

(1975) (explaining a predecessor statute’s history); United States v.

Bedford, 914 F.3d 422, 427 n.2 (6th Cir. 2019) (noting that Congress

streamlined the statute in 1996 and replaced “a lengthy list of spe-

cific federal officers and employees” with the present language).

Sections 1114 and 1521 provide the field of battle. On, then,

to the parties’ positions.

Pate’s argument is straightforward. First, he contends that

when he filed the retaliatory liens against their property, Koskinen

and Lew were no longer in government service. Second, he says

that because they were retired at the time, they weren’t “officer[s]

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8 Opinion of the Court 20-10545

or employee[s] of the United States” within the meaning of § 1114.

Thus, he concludes, § 1521 didn’t forbid him from filing the liens.

For its part, the government denies the relevance of a vic-

tim’s job status at the time a retaliatory lien is filed. The key ques-

tion, it insists, is why the lien was filed, not when it was filed: So

long as the lien was filed “on account of” the victim’s official ac-

tions, he qualifies as an “employee or officer of the United States”

for purposes of § 1114 and, as a result, is protected by § 1521. Be-

cause Pate filed the liens at issue here “on account of” Koskinen’s

and Lew’s official actions, the government says, his convictions

must stand.

As we read §§ 1114 and 1521, Pate has the better of the argu-

ment. To explain why, we’ll start by examining § 1521’s reference

to “an individual described in section 1114” in detail and, in partic-

ular, why that reference doesn’t include former federal officers or

employees. We’ll then consider the government’s contrary con-

tentions.

B

As the Supreme Court recently reiterated, “[w]hen called on

to resolve a dispute over a statute’s meaning, [a court] normally

seeks to afford the law’s terms their ordinary meaning at the time

Congress adopted them.” Niz-Chavez v. Garland, 141 S. Ct. 1474,

1480 (2021). Put another way, we “ask how a reasonable person,

conversant with the relevant social and linguistic conventions,

would read the text in context.” John F. Manning, The Absurdity

Doctrine, 116 Harv. L. Rev. 2387, 2392–93 (2003).

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Here, that means we seek the ordinary meaning of the key

phrase in § 1114, which § 1521 incorporates by reference: “any of-

ficer or employee of the United States.” And more particularly, we

ask whether that phrase—as used here, and in context—would be

understood by the average speaker of American English to include

former officers or employees of the United States. We conclude that

it wouldn’t.

1

We begin with the statutory phrase’s constituent parts.

With respect to the term “officer,” at least, the Dictionary Act pro-

vides a helpful starting point. It explains that “[i]n determining the

meaning of any Act of Congress, unless the context indicates oth-

erwise . . . ‘officer’ includes any person authorized by law to per-

form the duties of the office.” 1 U.S.C. § 1. After one leaves office,

of course, he’s no longer “authorized by law to perform the duties

of the office.” So the Dictionary Act gives us one good reason to

think that § 1114’s reference to federal “officer[s]” is best read to

mean current officers.

Contemporaneous dictionary definitions of both “officer”

and “employee” likewise indicate currency. Consider the present-

tense verbs (with our emphasis) used to explain those terms. In the

mid-1990s, the Oxford English Dictionary, for instance, defined “of-

ficer” as a “one . . . who performs a duty, service or function.” Ox-

ford English Dictionary (2d ed. 1989). Black’s Law Dictionary was

similar: An “officer” was a “[p]erson holding an office of trust, com-

mand or authority in corporation, government, armed services, or

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10 Opinion of the Court 20-10545

other institution or organization,” and an “employee” was “[o]ne

who works for an employer; a person working for salary or wages.”

Black’s Law Dictionary (6th ed. 1990). The popular and legal dic-

tionaries’ concurrence is powerful evidence of those terms’ ordi-

nary meanings. See, e.g., Spencer v. Specialty Foundry Prods. Inc., 953

F.3d 735, 740 (11th Cir. 2020). Here, those sources indicate that the

terms “officer” and “employee” refer to those presently holding of-

fice or employed, not those who formerly held office or were so

employed.

As does evidence from everyday usage—which, while not

conclusive, is certainly relevant. See United States v. Obando, 891

F.3d 929, 934 (11th Cir. 2018) (“Words are to be understood in their

ordinary, everyday meanings.” (quoting Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal Texts 69 (2012)));

United States v. Caniff, 916 F.3d 929, 941 (11th Cir. 2019) (Newsom,

J., concurring in part and dissenting in part) (emphasizing “how

people talk”), vacated and superseded, 955 F.3d 1183 (11th Cir. 2020).

We federal judges, for example, had jobs before we came to the

bench. Some of us worked in private practice, others in state gov-

ernment, and still others in academia. But it would be passing

strange to describe a judge as an “employee” of the law firm or

university for which he used to work. And it would be stranger

still to describe a federal judge as an “officer” of the state she used to

serve. A hypothetical underscores the common-parlance point:

Imagine a law prohibiting any “officer or employee” of the IRS

from taking money from accounting firms. Imagine further that

on the very same day that Pate filed a lien against him, Koskinen

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had accepted a job with one of the Big Four that came with a gen-

erous signing bonus. Would we think that Koskinen had violated

the law? Of course not. Reasonably read, our hypothetical stat-

ute’s prohibition on taking money from accounting firms ended

when Koskinen retired from government service. At least on its

face, there’s no reason to think that § 1114 operates any differently.

2

To the extent that § 1114’s plain language leaves any doubt

that it covers only current “officer[s]” and “employee[s],” the evi-

dence from statutory context resolves it. Significantly, § 1521 isn’t

the only federal criminal statute that cross-references and incorpo-

rates § 1114. So, too, do 18 U.S.C. § 111 (“Assaulting, resisting, or

impeding certain officers or employees”) and 18 U.S.C. § 115 (“In-

fluencing, impeding, or retaliating against a Federal official by

threatening or injuring a family member”). Notably, though, both

of those provisions—quite unlike § 1521—were amended in 1988

to bring explicitly within their coverage individuals “who formerly

served as . . . person[s] designated” in § 1114. See Pub. L. No. 100-

690, § 6487(a), (f), 102 Stat. 4181, 4386 (1988) (codified as amended

at 18 U.S.C. §§ 111(a)(2), 115(a)(2)).

What to make of that conspicuous difference between

§ 1521, on the one hand, and §§ 111 and 115, on the other? Let’s

start with the obvious: The cross-references in §§ 111 and 115

make perfect sense on Pate’s plain-meaning reading of § 1114—

they refer to an individual “who formerly served as [an officer or

employee of the United States].” The government’s interpretation,

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12 Opinion of the Court 20-10545

by contrast, makes nonsense of them; on its reading, those statutes

cover any individual “who formerly served as [a former officer or

employee of the United States].” Because, in the government’s

view, § 1114 has always included former officers and employees,

§ 111’s and § 115’s specific references to former officers and em-

ployees are redundant and superfluous. But see Duncan v. Walker,

533 U.S. 167, 174 (2001) (emphasizing that courts must “give effect,

if possible, to every clause and word of a statute” (citation and quo-

tation marks omitted)).

What’s more, the fact that Congress chose to amend § 111’s

and § 115’s cross-references to § 1114 to include former officers and

employees indicates that absent some similar modification, § 1521

doesn’t cover them. Indeed, an entire “family of canons” under-

score that commonsense point. See Freemanville Water Sys., Inc. v.

Poarch Band of Creek Indians, 563 F.3d 1205, 1209 (11th Cir. 2009).

First, “[w]here Congress includes particular language in one sec-

tion of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and pur-

posely in the disparate inclusion or exclusion.” Id. (citation and

quotation marks omitted). And as now-Justice Kavanaugh has ex-

plained, “[t]he dissimilar language need not always have been en-

acted at the same time or found in the same statute” to warrant

that presumption—at least where, as here, the provisions exist

within the same field of legislation. United States v. Papagno, 639

F.3d 1093, 1099 n.3 (D.C. Cir. 2011) (cataloging examples). Second,

and relatedly, “where Congress knows how to say something but

chooses not to, its silence is controlling.” Freemanville, 563 F.3d at

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1209 (citation and quotation marks omitted). Third, “when Con-

gress uses different language in similar sections, it intends different

meanings.” Id. (citation and quotation marks omitted). And fi-

nally, the capper: “Congress’ clear ability to modify [a] term . . . to

indicate the type thereof in other instances”—as it clearly demon-

strated by expressly referencing “former[]” officers and employees

in §§ 111 and 115—“and the fact that it did not do so in the disputed

phrase”—as it plainly didn’t in § 1521—signifies “that it had no in-

tention to so limit the term” in the latter instance. CBS Inc. v. Prime-

Time 24 Joint Venture, 245 F.3d 1217, 1226 (11th Cir. 2001) (citation

and quotation marks omitted) (omission and first alteration in orig-

inal).

The structural point is thus quite straightforward: The lan-

guage that Congress employed in §§ 111 and 115—referring to

those who “formerly served as a person designated” in § 1114—

would support Pate’s convictions if it existed in § 1521. Conspicu-

ously, though, it doesn’t, and so it can’t. To the contrary, the ab-

sence of any similar reference to formers in § 1521 confirms that,

for better or worse, it doesn’t cover them. 2

2 The government asserts that the comparison to §§ 111 and 115 is inapt be-

cause those statutes “create[] two different crimes”—one for conduct perpe-

trated against current officers and employees and another for conduct perpe-

trated against formers. See En Banc. Br. for Appellee at 45. Respectfully, we

aren’t persuaded. First, there aren’t separate crimes in §§ 111 and 115; there

are just different classes of possible victims. Second, if § 1114 already (and by

its very nature) included former officers and employees, as the government

insists it does, there wouldn’t have been any need to create separate crimes

specifically covering them. And yet, on the government’s own reading, in

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14 Opinion of the Court 20-10545

* * *

To sum up: The best evidence from statutory text, context,

and structure demonstrates that former officers and employees

aren’t among the “individual[s] described in section 1114” and, ac-

cordingly, that § 1521 didn’t prohibit Pate’s conduct.

C

The government presents several arguments in favor of

reading § 1114—and thus § 1521—to include former officers and

employees. None is persuasive.

1

First, the government offers its own assessment of § 1114’s

text and structure, pursuant to which that statute can cover “both

current and former employees depending on when and why the

defendant committed the crime against them.” En Banc Br. of Ap-

pellee at 16. The government concedes, as it must, that § 1114

“does not explicitly state whether it protects only current, or also

former, federal employees.” Id. But it proposes a two-track read-

ing of § 1114 that, the theory goes, permits § 1521 to reach former

officers and employees.

§§ 111 and 115 Congress did just that. Third, if Congress had wanted to pro-

tect former officers and employees against false liens, it could have amended

§ 1521 in just the same way it amended §§ 111 and 115—namely, to create a

new subsection expressly bringing formers within its ambit. For whatever

reason, it didn’t.

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The key distinction, the government asserts, is between

(1) crimes committed “while [an] officer or employee is engaged

in . . . the performance of [his] official duties” and (2) those com-

mitted “on account of the performance of official duties.” 18 U.S.C.

§ 1114(a). The first plainly includes a temporal element—hence the

“while.” According to the government, that piece of § 1114 cap-

tures crimes committed “while, meaning at the same time that, the

victim is working as a federal employee,” and thus excludes crimes

against former federal officers and employees. En Banc Br. of Ap-

pellee at 17.

By contrast, the government continues, § 1114’s “on ac-

count of” clause contains no temporal element—only a causal one.

So long as a victim is targeted “on account of” his official actions,

whether he’s a current or former civil servant is immaterial. Ac-

cordingly, the argument goes, “on account of” crimes can be com-

mitted against former federal officers and employees—the perpe-

trator’s motive is all that matters. And, the government says,

§ 1521’s “protection of former federal employees is even more cer-

tain than” § 1114’s because § 1521 prohibits only those liens filed

“on account of” a victim’s performance of official duties. Id. at 19.

Though plausible at first blush, the government’s interpre-

tation doesn’t withstand careful scrutiny. Most immediately, it

makes a hash of § 1114’s syntax and internal structure. By its terms,

§ 1114 prescribes two necessary conditions: first, the victim must

be a federal “officer or employee”; second, and separately, the of-

ficer-or-employee victim must have been targeted either (a) “while

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16 Opinion of the Court 20-10545

. . . engaged in” or (b) “on account of” the “performance of official

duties.” As a matter of simple logic, proof of one of the two sec-

ondary conditions doesn’t ipso facto satisfy the primary condition.

Accordingly, even if the government can demonstrate that an of-

ficer-or-employee victim was targeted either “while [he was] en-

gaged in” or “on account of” his performance of official duties, it

must still prove that the victim was an “officer or employee” within

the meaning of § 1114’s opening line. The “while engaged in” and

“on account of” clauses, that is, limit the class of “officer[s and] em-

ployee[s]” protected by the statute; they can’t expand the scope of

that phrase beyond its ordinary meaning.

The government is correct, of course, that the “while en-

gaged in” clause applies, by definition, “only if the victim is a cur-

rent federal employee,” inasmuch as “someone who is no longer

employed by a federal agency cannot be engaged in official federal

duties.” En Banc Br. of Appellee at 17. But it’s a non sequitur to

assert, as the government does, that because the “while engaged

in” clause doesn’t cover former officers and employees, the “on ac-

count of” clause must do so. To the contrary, the “on account of”

clause applies quite naturally, and consistently with the ordinary

meaning of the phrase, to current “officer[s and] employee[s]”—

imagine, for instance, an attack on a federal law enforcement of-

ficer whose earlier undercover work led to a successful prosecu-

tion.

In much the same way, the government’s reading also defies

§ 1521’s structure. That provision, recall, forbids filing “any false

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20-10545 Opinion of the Court 17

lien or encumbrance against the real or personal property of an in-

dividual described in section 1114, on account of the performance

of official duties by that individual.” 18 U.S.C. § 1521. Thus, as

already explained, § 1521, like § 1114, prescribes multiple necessary

conditions to liability: The government must establish (1) that the

defendant filed a “false lien or encumbrance” that he “kn[ew] or

ha[d] reason to know” was false, (2) that he filed it against the prop-

erty of “an individual described in section 1114,” and (3) that he did

so “on account of” that individual’s performance of official duties.

On the government’s reading, whenever § 1521’s third condition is

met, the second must be, too. But again, that doesn’t follow. Even

if the government can prove the “on account of” condition—

which, to repeat, Pate doesn’t contest—it must separately prove

that the false-lien victim was “an individual described in section

1114”—i.e., an “officer or employee of the United States.”

What’s more, the government’s stitched-together statute

makes little (which is to say no) grammatical sense. Where § 1521

says “an individual described in section 1114,” the government

would seemingly insert the entirety of § 1114. Accordingly, as rele-

vant here, the government’s hybrid would read like this:

Whoever files . . . any false lien or encumbrance

against the real or personal property of [any officer or

employee of the United States . . . while such officer

or employee is engaged in or on account of the per-

formance of official duties] on account of the perfor-

mance of official duties by that individual . . . shall be

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18 Opinion of the Court 20-10545

fined under this title or imprisoned for not more than

10 years, or both.

The government’s reading perversely renders § 1521’s own cover-

age provision superfluous because it results in stacking two “on ac-

count of the performance of official duties” clauses on top of one

another. To be sure, “[s]ometimes the better overall reading of the

statute contains some redundancy,” but where “one possible inter-

pretation of a statute would cause some redundancy and another

interpretation would avoid redundancy, that difference in the two

interpretations can supply a clue as to the better interpretation of a

statute.” Rimini St., Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 881

(2019). Here, only the government’s proposed interpretation cre-

ates the weird “on account of” repetition. Because we usually pre-

sume that Congress doesn’t use needless words, see Scalia & Gar-

ner, Reading Law, supra, at 174–76, and the government has given

us little reason to think otherwise here, that’s yet another reason

to reject its reading of § 1521.

For all these reasons, we conclude that the government’s la-

bored interpretation of §§ 1114 and 1521 stretches them beyond the

breaking point, and we therefore reject it. 3

3 There is one loose interpretive end: The government points to § 1114(a)’s

closing clause, which protects “any person assisting . . . an officer or employee

in the performance of [official] duties or on account of that assistance.” 18

U.S.C. § 1114(a). That clause, the government says, “does not limit its protec-

tion of [the] . . . assistant to the time that the federal employee remains in

active service” and “thus gives private victims essentially perpetual protection

against criminal retaliation on account of their assistance with official duties.”

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20-10545 Opinion of the Court 19

2

Statutory text and structure aside, the government insists

that existing caselaw supports its interpretation. For reasons we’ll

explain, we disagree.

The government particularly emphasizes the Fifth Circuit’s

decision in United States v. Raymer, 876 F.2d 383 (5th Cir. 1989).

There, a defendant appealed his conviction for threatening a pro-

bation officer in violation of 18 U.S.C. § 115, a statute that refer-

enced the version of § 1114 then in effect. Id. at 384–85. Faced with

the question whether retired probation officers fell within § 1114’s

ambit, the Fifth Circuit started (oddly to the modern eye) with the

statute’s legislative history, which it found inconclusive. Id. at 389–

En Banc Br. of Appellee at 21. And, the government continues, it would be

“anomalous” to give “greater protection to a private person who once assisted

with a single official duty than . . . to a federal official who rendered years of

devoted service to the nation.” Id. at 22.

Because this case doesn’t concern an “assist[ant]”—no one contends

that Koskinen and Lew were anything other than former “officer[s] or em-

ployee[s]”—we needn’t decide here the temporal scope of § 1114(a)’s “assist-

ing” clause. We can say, though, that giving assistants an additional dose of

protection, if only as a means of incentivizing their cooperation, wouldn’t be

so patently absurd as to warrant ignoring the balance of the textual, contex-

tual, and structural evidence. Because “[c]ourts should not be in the business

of rewriting legislation, . . . we apply the absurdity doctrine only under rare

and exceptional circumstances”—namely, “where a rational Congress could

not conceivably have intended the literal meaning to apply.” Vachon v. Trav-

elers Home & Marine Ins., 20 F.4th 1343, 1350 (11th Cir. 2021) (Pryor, C.J.,

joined by Lagoa, J., concurring) (citations and quotation marks omitted)

(omissions accepted).

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20 Opinion of the Court 20-10545

90. Without legislative history to guide it, the court lamented, it

was “left with the plain language of the statute.” Id. at 390. It then

reasoned that because the statute was properly read to cover off-

duty officials, it must also include a “retired official”—the latter, the

court reasoned, being different from the former only in that retir-

ees are “in a sense permanently off-duty.” Id. And, the court

added, covering former officials accorded with what it called the

statute’s “obvious purpose” of “free[ing] public officials from retal-

iation for their official acts.” Id. at 391.

With respect, we find Raymer wholly unpersuasive—and the

government’s contention that Congress has somehow ratified it in

the intervening decades even more so. Beginning with Raymer it-

self, we see multiple problems. As an initial matter, the Fifth Cir-

cuit there relied heavily on what it took to be § 1114’s “obvious

purpose,” but purposes, obvious or otherwise, provide no basis for

skirting a statute’s plain language. And as the Supreme Court has

reminded us, to the extent a statute’s purpose is relevant, “[t]he

best evidence of that purpose is the statutory text adopted by both

Houses of Congress and submitted to the President.” West Va.

Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991); see also United States

v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.) (“The

intention of the legislature is to be collected from the words they

employ.”). Raymer’s appeals to statutory purpose thus do nothing

to alter our plain-text reading of § 1114.

Nor are we convinced by the Raymer court’s contention that

retired officials should be treated like off-duty officials—and thus

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20-10545 Opinion of the Court 21

covered by § 1114—because they are just “permanently off-duty.”

876 F.2d at 390. A retired officer, in fact, is fundamentally different

from an off-duty officer: One is on the payroll, the other isn’t; one

will be back “on duty” in short order, the other won’t; one is ac-

tively engaged in the work of the federal government, the other

isn’t. Moreover, and in any event, no amount of functional simi-

larity between off-duty and retired officers can make § 1114 say

what it doesn’t say.

Whatever Raymer’s merits or demerits, the government sep-

arately contends that Congress ratified the Fifth Circuit’s interpre-

tation of § 1114 when it enacted § 1521. We don’t think so. As an

initial matter, “we walk on quicksand when we try to find in the

absence of corrective legislation a controlling legal principle.”

Helvering v. Hallock, 309 U.S. 106, 121 (1940). That is doubly so

when we are asked to take guidance from Congress’s silence in the

wake of decisions issued by what the Constitution calls “inferior

Courts.” U.S. Const. art. III, § 1. While it’s true that the buck often

stops with us middle managers, there’s scant empirical support for

the proposition that when Congress legislates, it does so with indi-

vidual circuit-court decisions in mind. See Amy Coney Barrett,

Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev.

317, 331 (2005) (“Empirical research shows fairly conclusively . . .

that Congress is generally unaware of circuit-level statutory inter-

pretations.”). Accordingly, there’s no strong normative case for the

proposition that Congress’s silence concerning § 1114 or its subse-

quent enactment of § 1521 should be understood as an endorse-

ment of Raymer. Cf. Jerman v. Carlisle, McNellie, Rini, Kramer &

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22 Opinion of the Court 20-10545

Ulrich LPA, 559 U.S. 573, 607 (2010) (Scalia, J., concurring in part

and concurring in the judgment) (“It seems to me unreasona-

ble . . . to assume that, when Congress has a bill before it that con-

tains language used in an earlier statute, it is aware of, and approves

as correct, a mere three Court of Appeals decisions interpreting

that earlier statute over the previous nine years.”). 4

We find the government’s reliance on United States v. Feola,

420 U.S. 671 (1975), equally misplaced. The Supreme Court’s deci-

sion there is pretty far afield to begin with, in that it involved an

examination of (1) the scienter element (2) of a conspiracy charge

(3) pertaining to a different underlying statute, 18 U.S.C. § 111. No-

tably, there was no question in that case that the victim—an under-

cover narcotics agent who was assaulted while engaged in a sting

operation—was, in fact, a federal officer at the time the crime was

committed against him. The Court’s lone holding was that § 111—

which, as already explained, cross-references § 1114—didn’t

4 The government also relies on two other out-of-circuit authorities that cite

Raymer—United States v. Martin, 163 F.3d 1212 (10th Cir. 1998), and United

States v. Wolff, 370 F. App’x 888 (10th Cir. 2010). Neither moves the needle.

Martin addressed threats made against a local policeman who had been depu-

tized to participate in an FBI investigation at “the time the charged conduct

occurred”—i.e., at the time he was threatened. 163 F.3d at 1215. To the extent

that the panel there addressed the former-employee issue at all, it did so only

in the “alternative[],” only in connection with the policeman’s “assist[ance]”

of federal officials (which, as we have explained, may present a different inter-

pretive question, see supra note 3), and only by rote citation to Raymer. See id.

So too, when Wolff (an unpublished opinion) adopted Raymer’s logic, it did so

without any additional analysis of the statutory text or context. See 370 F.

App’x at 895–96.

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20-10545 Opinion of the Court 23

require proof that his assailant knew that the victim was a federal

officer. 420 U.S. at 684. To be sure, along the way, the Court ob-

served that Congress enacted § 1114 with the dual aims of “pro-

tect[ing] both federal officers and federal functions.” Id. at 679.

And the nod to “federal functions” presumably explains why lower

courts have held that local police officers targeted while acting as

deputies to the federal government (or for actions taken while dep-

utized) count as “federal officers” within the meaning of § 1114.

See, e.g., United States v. Luna, 649 F.3d 91, 101 (1st Cir. 2011); United

States v. Martin, 163 F.3d 1212, 1215 (10th Cir. 1998). But we’ve

already rejected the suggestion that a concern for “federal func-

tions” should be read for all it might be worth. In United States v.

Kirkland, for instance, we held that a “federal functions”-based ar-

gument couldn’t overcome the express language of a previous ver-

sion of § 1114 and, on that basis, refused to count contract postmen

as “officer[s] or employee[s] of the Postal Service.” 12 F.3d 199,

202–03 (11th Cir. 1994). Although Kirkland doesn’t squarely con-

trol here, it counsels against overreading Feola’s “federal functions”

reference, as we think the government does.

3

Without strong textual or precedential arguments, the gov-

ernment retreats to “that last redoubt of losing causes, the propo-

sition that the statute at hand should be liberally construed to

achieve its purposes.” Director, Off. of Workers’ Comp. Programs v.

Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135 (1995).

Indeed, by our count, the government’s brief invokes § 1114’s and

§ 1521’s supposed “purposes” more than 20 times. Chief among

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24 Opinion of the Court 20-10545

those “laudatory purposes,” the government says—channeling

Feola’s dictum—is “maximum protection for federal officers and

federal functions.” En Banc Br. of Appellee at 29–30, 37. And to

advance that goal, the government insists, we should construe

§§ 1114 and 1521 to protect former officers and employees.

For the same reasons we found Raymer’s purposivism unper-

suasive, we reject the government’s invitation to stretch the text.

Because “no legislation pursues its purposes at all costs,” Rodriguez

v. United States, 480 U.S. 522, 525–26 (1987), we can’t just do what-

ever would further the purposes that the government attributes to

Congress. Doing so would ignore the fact that “the textual limita-

tions upon a law’s scope are no less a part of its ‘purpose’ than its

substantive authorizations.” Kucana v. Holder, 558 U.S. 233, 252

(2010) (citation and quotation marks omitted).

That is perhaps especially so in the criminal context. Courts

have long recognized that “before a man can be punished as a crim-

inal under the federal law his case must be plainly and unmistaka-

bly within the provisions of some statute.” United States v. Gradwell,

243 U.S. 476, 485 (1917) (quotation marks omitted). So here, we

reiterate with particular emphasis what is always true: “Elevating

general notions of purpose over the plain meaning of the text is

inconsistent with our judicial duty to interpret the law as written.”

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 970 (11th Cir.

2016) (en banc). “[A]s written,” § 1114 doesn’t cover former federal

officers and employees, and § 1521 thus doesn’t prohibit the filing

of false liens against their property.

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20-10545 Opinion of the Court 25

D

None of this, of course, is to say that the terms “officer” and

“employee” can never include formers. And indeed, as the govern-

ment points out, the Supreme Court has twice held that they can.

But a careful examination reveals that the (civil) statutes at issue in

those two cases were different in important respects from §§ 1114

and 1521.

First, Robinson v. Shell Oil Co., 519 U.S. 337 (1997). There, the

Supreme Court held “that the term ‘employees,’ as used in § 704(a)

of Title VII, is ambiguous as to whether it includes former employ-

ees.” Id. at 346. Faced with that ambiguity, the Court concluded

that it was “more consistent with the broader context of Title VII

and the primary purpose of § 704(a)” to hold “that former employ-

ees are included within § 704(a)’s coverage.” Id. Critically, though,

in so holding, the Court relied on solid textual indicators that “em-

ployee” carried a broader meaning “as used in § 704(a).” Id. at 339,

341, 346. In particular, the Court emphasized that under Title VII,

“employees” have access to remedial mechanisms for “discrimina-

tory discharge,” including “reinstatement.” Id. at 342–43, 345. Be-

cause a claim “alleging unlawful discharge would necessarily be

brought by a former employee,” the Court held that it made sense

to interpret the term “employees” in § 704(a) as including formers.

Id. at 345. For reasons we have explained at length, no such com-

pelling textual evidence exists here.

Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989),

may present a closer case, but it too is distinguishable. There, the

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26 Opinion of the Court 20-10545

Supreme Court considered whether retirement benefits paid to for-

mer federal employees came within the ambit of the following stat-

ute:

The United States consents to [state] taxation of pay

or compensation for personal service as an officer or

employee of the United States . . . if the taxation does

not discriminate against the officer or employee be-

cause of the source of the pay or compensation.

4 U.S.C. § 111(a).

In rejecting the state’s contention that this provision covered

only “current employees of the Federal Government, not . . . retir-

ees,” the Court emphasized not just the statute’s “words” but

also—and notably—“their place in the overall statutory scheme.”

Davis, 489 U.S. at 808–09. In particular, the Court observed, the

provision’s “first part” applied “by its terms . . . to ‘the taxation of

pay or compensation for personal services as an officer or employee of the

United States.’” Id. at 808 (emphasis in original). Because retire-

ments benefits “are deferred compensation earned ‘as’ a federal

employee,” the Court said, the statute was properly understood to

cover them. Id. The Court acknowledged the state’s argument

that because the provision’s “latter part” referred more starkly (and

without any “as”-like lookback) to an “officer or employee,” it

should be read to “appl[y] only to current federal employees.” Id.

at 809. But, the Court sensibly held, the provision’s “latter” part

had to be understood in light of its “first part”—i.e., to refer to the

same “pay or compensation” and the same “officer or employee”:

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20-10545 Opinion of the Court 27

The reference to “the pay or compensation” in the last

clause of § 111 must, in context, mean the same “pay

or compensation” defined in the first part of the sec-

tion. Since that “pay or compensation” includes re-

tirement benefits, the nondiscrimination clause must

include them as well.

489 U.S. at 809.

To be sure, § 1521 bears some resemblance to the tax statute

at issue in Davis in that (1) both refer to an act taken against an

“officer or employee of the United States” and (2) both require

some relationship between that act and government service—

“compensation for personal service as an officer or employee” in

the tax provision, liens filed “on account of” official actions in

§ 1521. Importantly, though, the textual, contextual, and structural

indications in Davis were very different from those here. For one

thing, the provisions’ internal syntactical structures are each

other’s diametric opposites: As just explained, the tax statute’s lead

clause referred generally to “pay or compensation for personal ser-

vice as an officer or employee”—a phrase that is reasonably read to

cover formers—and the Court sensibly interpreted the follow-on

clause’s reference to “the officer or employee” to point back to the

same compensation and the same individual. Conversely, § 1521’s

primary prohibition is on the filing of false liens against (by refer-

ence to § 1114) an “officer or employee of the United States,” which

it then limits to those filed “on account of the performance of offi-

cial duties by that individual.” Davis turned on the principle that

readers naturally understand subsequent phrases in light of

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28 Opinion of the Court 20-10545

antecedent ones. Just so here. But in Davis, the phrase “officer or

employee” was the subsequent; in § 1114, it’s the antecedent. We

would be letting the tail wag the dog were we to permit § 1114’s

“on account of” corollary to expand the scope of the very cate-

gory—“officer[s] or employee[s]”—that it purports to limit. Add

to all that the reasonable inferences drawn from the linguistic dif-

ferences between 18 U.S.C. §§ 111 and 115, on the one hand, and

§ 1521, on the other—none of which existed in Davis—and it be-

comes clear that the Supreme Court’s decision there does not

meaningfully support the government’s position here.

* * *

Taken together, then, Robinson and Davis establish that

words like “officer” and “employee” can sometimes include for-

mers—but only when the statutory context makes clear that they

should. Neither suffices to show that the ordinary meaning of

those terms includes ex-officers or erstwhile employees. Here,

given the absence of textual indicia supporting a broader reading of

the terms, we decline to adopt the government’s strained interpre-

tation. Cf. Nichols v. United States, 136 S. Ct. 1113, 1118 (2016) (“As

we long ago remarked in another context, ‘[w]hat the government

asks is not a construction of a statute, but, in effect, an enlargement

of it by the court, so that what was omitted, presumably by inad-

vertence, may be included within its scope. To supply omissions

transcends the judicial function.’” (quoting Iselin v. United States,

270 U.S. 245, 251 (1926) (alteration in original)).

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20-10545 Opinion of the Court 29

III

“The statute says what it says—or perhaps better put here,

does not say what it does not say.” Cyan, Inc. v. Beaver Cnty. Emps.

Ret. Fund, 138 S. Ct. 1061, 1069 (2018). Because Pate filed the liens

at issue when Koskinen and Lew were no longer government “of-

ficer[s] or employee[s]” within the meaning of § 1114, his conduct

(however improper) wasn’t covered by 18 U.S.C. § 1521. Accord-

ingly, we vacate his § 1521 convictions pertaining to the liens filed

against Koskinen’s and Lew’s property and remand for resentenc-

ing.

VACATED AND REMANDED.

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20-10545 ROSENBAUM, J., Concurring 1

ROSENBAUM, Circuit Judge, joined by WILLIAM PRYOR, Chief Judge,

and NEWSOM, Circuit Judge, concurring:

I concur in full with the well-reasoned Majority Opinion. I

write separately to underscore the problems with appealing to stat-

utory purpose to expand the textually clear scope of criminal liabil-

ity under 18 U.S.C. §§ 1114 and 1521: relying solely on congres-

sional purpose collides with bedrock principles of due process and

the separation of powers.

The “first essential of due process” is that “statutes must give

people ‘of common intelligence’ fair notice of what the law de-

mands of them.” United States v. Davis, 139 S. Ct. 2319, 2325 (2019)

(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)).

Without a clear articulation, or “fair warning” of what the law pro-

scribes, the average citizen is unable to determine whether certain

conduct is or is not illegal. As Justice Holmes put it, “[a]lthough it

is not likely that a criminal will carefully consider the text of the

law before he murders or steals, it is reasonable that a fair warning

should be given to the world in language that the common world

will understand, of what the law intends to do if a certain line is

passed.” McBoyle v. United States, 283 U.S. 25, 27 (1931). “To make

the warning fair,” he continued, “so far as possible the line should

be clear.” Id.

“The underlying principle” behind the fair-warning require-

ment, the Court has explained, “is that no man shall be held crimi-

nally responsible for conduct which he could not reasonably un-

derstand to be proscribed.” Bouie v. City of Columbia, 378 U.S. 347,

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2 ROSENBAUM, J., Concurring 20-10545

351 (1964) (quoting United States v. Harriss, 347 U.S. 612, 617

(1954)). But in imposing criminal liability, relying solely on Con-

gress’s purpose in enacting a statute would threaten to vitiate that

principle. In particular, the government repeatedly emphasizes the

statute’s purported purpose, to provide “maximum protection of

federal functions and federal officials.” En Banc Br. of Appellee at

29–32. And because of that purpose, the argument goes, we should

ignore the plain text and instead interpret §§ 1114 and 1521 to cap-

ture former federal officials.

Then, the government suggests charging ordinary citizens

with discerning Congress’s purpose here from reviewing the Su-

preme Court’s decision in United States v. Feola, 420 U.S. 671

(1975). 1 That’s a case that doesn’t even construe the provision Pate

1 Feola holds that, to violate § 111, a citizen need not know that someone he

assaults is a federal officer who is engaged in the performance of official duties.

See Feola, 420 U.S. at 684. Judge Lagoa’s Dissent asserts that this fact renders

the usual notice requirement a nullity. Lagoa Dissent at 26. But this confuses

the scienter requirement with notice that an act amounts to a federal crime.

They are not one and the same. The lack of a scienter requirement in § 111

does not impair the legal notice the statute provides that it is a federal crime

to assault someone who is a federal officer engaged in the performance of of-

ficial duties. In other words, any citizen knows by reading § 111 that he com-

mits a federal crime if he assaults a federal officer, even if he doesn’t know the

person he assaults is a federal officer. But under § 1521, the text of the statute

does not inform a person that filing false liens against a former federal officer

is a federal crime. So Pate could have read § 1521 and believed that any liens

filed against Koskinen and Lew would not create federal criminal liability be-

cause the statute does not, on its face, protect former officers. And that is the

due-process notice problem with construing the text to pertain to former of-

ficers when it does not.

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20-10545 ROSENBAUM, J., Concurring 3

is charged with violating. Rather, it interprets 18 U.S.C. § 111. So

under the government’s proposed approach, an ordinary citizen

would be required to scour through caselaw interpreting all possi-

bly related statutes to determine the purpose of the statute at issue

in his own case. And even if the diligent citizen were able to figure

out the statute’s purpose, he would still then need to interpret the

text in light of that purpose. But citizens are responsible for only

knowing and abiding by the text Congress has enacted and the set-

tled interpretations of that text. See United States v. Lanier, 520 U.S.

259, 267 (1997). That itself can be hard enough. Cf. United States v.

LaBonte, 520 U.S. 751, 780 (1997) (Breyer, J., dissenting) (“The

United States Criminal Code contains a highly complicated group

of statutes.”).

Time and again, the Supreme Court has emphasized that a

criminal statute’s text must be clear to impose liability in a consti-

tutional manner. As Justice Robert Jackson explained, “[t]he spirit

of the doctrine which denies to the federal judiciary power to cre-

ate crimes forthrightly admonishes that we should not enlarge the

reach of enacted crimes by constituting them from anything less

than the incriminating components contemplated by the words

used in the statute.” Morissette v. United States, 342 U.S. 246, 249–

50 (1952). See also Boulware v. United States, 552 U.S. 421, 434 (2008).

Put another way, a criminal statute cannot be expanded beyond

the text to reach a scenario that may be consistent with the statute’s

purpose based “upon the speculation that if the legislature had

thought of it, very likely broader words would have been used.”

McBoyle, 283 U.S. at 27.

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4 ROSENBAUM, J., Concurring 20-10545

Justice Jackson’s opinion in Morissette highlights yet another

problem with the government’s proposed expansion of §§ 1114 and

1521 beyond their plain text: violating the separation of powers.

In our federal system, “[i]t is the legislature, not the Court, which

is to define a crime, and ordain its punishment.” United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820) (Marshall, C.J.); Bousley

v. United States, 523 U.S. 614, 620–21 (1998) (“[U]nder our federal

system it is only Congress, and not the courts, which can make con-

duct criminal.”). If the statutory text, read in the context of the

statute as a whole, does not by its terms prohibit certain conduct,

we have no way of knowing that Congress prohibited that conduct.

And if we were to rely solely on whatever we construe the

statute’s purpose to be to broaden the statute’s scope, we would

be, in essence, rewriting the statute, rather than simply interpreting

it. In other words, we would be usurping Congress’s authority.

Davis, 139 S. Ct. at 2325 (“Only the people’s elected representatives

in the legislature are authorized to ‘make an act a crime.’” (quoting

United States v. Hudson, 11 U.S. (7 Cranch) 32, 34 (1812))); United

States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 494 n.7 (2001)

(“Because federal courts interpret, rather than author, the federal

criminal code, we are not at liberty to rewrite it.”).

If Congress believes that defendants like Pate should face li-

ability for bringing false liens against former government officials,

Congress knows how to say so. And it is free to amend § 1521, just

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20-10545 ROSENBAUM, J., Concurring 5

as it previously amended §§ 111 and 115 to shield former officials. 2

That is, if Congress really did enact § 1521 to provide “maximum

protection” for federal officials, it can modify the text to ensure that

the statute effectuates that purpose moving forward. But as a fed-

eral court, we cannot read the text broadly to impose criminal lia-

bility on Pate when Congress has not clearly criminalized his con-

duct.

To be sure, instances arise when courts can discern a stat-

ute’s purpose as “derived from the text.” United States v. Bryant, 996

F.3d 1243, 1257 (11th Cir. 2021). But courts do not rely solely on

what they assume to be congressional purpose when they construe

statutes. Here, though, that is what we’d have to do because the

text itself does not support the reading that the government seeks

to give it.

* * *

Citizens—including unsympathetic defendants—have con-

crete rights. One entitles them to receive fair notice when the law

criminalizes conduct. And our structure of government separately

ensures that citizens can be punished for only those acts that the

legislature has criminalized. Because the statutes here do not

2 But see Maj. Op. at 21–22 (explaining that “there’s scant empirical support for

the proposition that when Congress legislates, it does so with individual cir-

cuit-court decisions in mind”).

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6 ROSENBAUM, J., Concurring 20-10545

criminalize the filing of false liens against former federal officials, 3

I concur in the Court’s opinion today.

3 That is not to say that one who files false liens is not subject to legal action

under any applicable state laws.

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20-10545 BRASHER, J., Concurring 1

BRASHER, Circuit Judge, concurring in part:

I concur with everything in the majority opinion except Part

II.B.1. For the reasons explained in Judge Lagoa’s dissenting opin-

ion, I think the phrase “any officer or employee of the United

States” may reasonably be interpreted—in the right context—to in-

clude former officers and employees. In my view, neither the Dic-

tionary Act nor the dictionaries cited in the majority opinion help

resolve whether we should interpret this phrase in Section 1114 to

cover former officers and employees. Nonetheless, I think the

broader context of Section 1114 favors Pate’s interpretation. In par-

ticular, I find it highly persuasive that other statutes also protect

persons listed in Section 1114, but those statutes separately and ex-

pressly cover former officers and employees. As the majority ex-

plains, the government’s reading of Section 1114 “would make

nonsense” of those statutes. That is, we would have to read them

to cover anyone “who formerly served as a [former officer or em-

ployee of the United States].” Because we must “look to the entire

statutory or regulatory context” when we interpret a phrase in a

statute, Sec. & Exch. Comm’n v. Levin, 849 F.3d 995, 1003 (11th Cir.

2017), I cannot say that Section 1114 is best read to cover former

officers or employees.

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20-10545 GRANT, J., Dissenting 1

GRANT, Circuit Judge, joined by BRANCH and LAGOA, Circuit

Judges, dissenting:

I join in full the excellent primary dissent written by Judge

Lagoa. I write separately to emphasize the illogical consequences

introduced by the majority’s hypertechnical reading and to put a

finer point on why a comparison between this statute and two

other provisions of Title 18 should not derail us from concluding

that the best reading of § 1521 covers acts targeting both current

and former federal officials.

I.

When interpreting words like “officer” and “employee” in

federal statutes we cannot default to the assumption that those

terms operate only in the present tense, including current but not

former officials. The Supreme Court’s own precedents make that

clear. After all, in Robinson v. Shell Oil Co., the Court held that the

term “employees” includes former employees in the context of one

statute, and in Davis v. Michigan Department of Treasury it held that

the words “officer” and “employee” refer to both current and re-

tired personnel in yet another statute. 519 U.S. 337, 346 (1997); 489

U.S. 803, 808–10 (1989). Dictionaries were not enough. See Robin-

son, 519 U.S. at 342. In both cases, the Supreme Court used an array

of interpretive tools to conclude that the terms “officer” and “em-

ployee” encompassed former as well as current officers and em-

ployees: “the language itself, the specific context in which that lan-

guage is used, and the broader context of the statute as a whole.”

Id. at 341; see also Davis, 489 U.S. at 808–10.

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2 GRANT, J., Dissenting 20-10545

Those tools lead to the same answer here—§ 1521 is best

read to include former as well as current federal officials. I will not

restate all of the helpful analysis offered in the primary dissent, but

will provide some background context for my broader point that

the majority’s approach skips some interpretive tools and overex-

tends others.

To start, according to the Supreme Court itself, the term

“employees” on its own lacks a “temporal qualifier . . . such as

would make plain” that it refers only to current employees; so too

for officers. Robinson, 519 U.S. at 341. The Supreme Court was

clear that the statute, not a dictionary definition, would show

whether former employees were included. Id. at 342. But the ma-

jority thinks differently, deciding that “[c]ontemporaneous diction-

ary definitions” indicate that these words somehow operate only

in the present tense. Maj. Op. at 9. It is not the substantive defini-

tions, however, but the verb tense used in those definitions that

moves the needle for the majority. Id. at 9–10. Effectively adding

the word “current” to the meaning of “officer” is a big step. Using

the tense of a verb imbedded in the definition of a noun to do so is

even bigger. Id. And that is especially true when the Supreme

Court has already rejected incorporating a temporal aspect into the

meaning of similar words. See Robinson, 519 U.S. at 341–42.

If anything, as Judge Lagoa rightly points out, the language

Congress used in § 1521 inherently looks backward in time. See

Judge Lagoa Dissent at 15. Any violation of this statute is a retalia-

tory act for something that happened in the past. Section 1521

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20-10545 GRANT, J., Dissenting 3

makes it a crime to file a false lien or encumbrance against “an in-

dividual described in section 1114, on account of the performance of

official duties by that individual.” (emphasis added). Though the

ordinary meaning of “on account of” is likely intuitively familiar to

most English speakers, the dictionary confirms that intuition, de-

fining it to mean “because of.”1 See On Account Of, Oxford English

Dictionary (online edition), https://perma.cc/LG7W-ATCR (“For

the sake of, in consideration of; by reason of, because of.”). So, in

context, the phrase “on account of” centers a criminal’s motivation

on an earlier action taken by a government official. Section 1521

thus makes it a crime to target an official for an act taken in the

past.

The statute recognizes that a perpetrator’s retaliatory mo-

tive does not end when the official act is complete. Nor does that

motivation evaporate when an officer stops being an officer. The

backward-looking language of this law, connecting an officer’s sta-

tus to an action taken in the past, thus strongly suggests that the

statute’s purposes and protections outlast an officer’s federal em-

ployment.

Still, while only one reading of § 1521 fully incorporates the

backward-looking focus of the language, two readings are availa-

ble: one that includes former officers and one that does not. We

1 I fear that we are over relying on dictionaries when we use them to unpack

basic words like these. To be sure, they are often helpful. But not always—

and we may risk complicating rather than simplifying a statute’s meaning by

evaluating minutiae from the definitions of well-understood words.

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4 GRANT, J., Dissenting 20-10545

need other tools to decide which is best, and fortunately the text

and structure of § 1521, as well as § 1114, tell us what we need to

know.

Section 1114 defines the set of potential targets covered by

§ 1521. See 18 U.S.C. § 1521. This includes “any officer or em-

ployee of the United States” and “any person assisting such an of-

ficer or employee.” 2 18 U.S.C. § 1114(a). So at least one thing is

clear—anyone who is targeted because he formerly assisted an of-

ficer qualifies as a victim under the statute. And that is true no

matter how long ago that assistance was rendered, and no matter

how long ago that officer quit being an officer. Excluding former

officers from § 1521 thus introduces an unsustainable illogic into

the statute—that people who assisted former federal officers would

be protected, but the former officers themselves would not be.

This inconsistency, which the majority consigns to a foot-

note and terms a “loose interpretive end,” cannot be waved away.

Maj. Op. at 18 n.3. It is a crucial part of the statute’s context and

structure. Perhaps realizing the difficulty of sustaining a reading of

the statute that contains this illogic, the majority refuses to fully

2 No one is suggesting that § 1521’s reference to “an individual described in

§ 1114” incorporates “the entirety of § 1114.” Contra Maj. Op. at 17–18. If it

did, the statute would be redundant, since both § 1114 and § 1521 contain the

“on account of” language. But both the terms that are incorporated from

§ 1114—including the “person assisting” language discussed in this section—

and their immediate context make clear that § 1521 covers former officers.

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20-10545 GRANT, J., Dissenting 5

endorse it. Id. But there is no way around this obstacle. And, con-

trary to the majority’s suggestion, the fact that this case does not

concern someone who assisted a federal officer is not a license to

ignore the problem. See id. “In ascertaining the plain meaning of

the statute, the court must look to the particular statutory language

at issue, as well as the language and design of the statute as a

whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Here,

we cannot discern the best interpretation of the statute without

considering the whole thing, including how its component parts

work together.

It would be remarkable to suggest that Congress intended

to give greater protections to those who assist federal officers than

to the federal officers themselves. So remarkable, in fact, that the

majority is unwilling to do so, even though that is the only possible

answer if the statute does not protect former officers. And that

conclusion becomes more remarkable still when one considers that

an individual could both engage in her own official duties and assist

her coworkers in theirs. See Judge Lagoa Dissent at 18. So, under

the majority’s reading, a retired officer who is targeted for assisting

another officer would be protected, but a retired officer who is tar-

geted for doing her own job would not be. That makes no sense.

The majority, to be sure, is not alone in its failure on this

front: “Perhaps no interpretive fault is more common than the fail-

ure to follow the whole-text canon, which calls on the judicial in-

terpreter to consider the entire text, in view of its structure and of

the physical and logical relation of its many parts.” Antonin Scalia

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6 GRANT, J., Dissenting 20-10545

& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167

(2012). Here, reading “officer” to mean “current officer” violates

this canon because it “would cause the provision to clash with an-

other portion of the statute.” Id. at 168. Considering the entire text

of § 1521 and § 1114 thus reveals the folly of limiting the words

“employee” and “officer” to the present tense.

In sum, the plain language of § 1521 offers two plausible

readings—one that includes former officers and one that does not.

But additional statutory context renders one of those meanings

“implausible at best”—just as in Davis and Robinson. Davis, 489 U.S.

at 810 (emphasis added). The best reading of § 1521, including its

text and context, is that its protections extend to former officers as

well as current ones. To say otherwise is to ignore the backward-

looking language defining the connection between the officer and

his acts, the lack of any reason at all to limit the temporally neutral

text to current officers, and, perhaps most of all, the obvious illogic

introduced by applying the statute to those who assisted former

officers but not the former officers themselves.

II.

The most persuasive argument to the contrary—at least su-

perficially—comes from two other statutes: 18 U.S.C. § 111 and 18

U.S.C. § 115. Like § 1521, each of these provisions incorporates

§ 1114 to define its class of potential victims. But they also sepa-

rately include persons who “formerly” served, which highlights

that word’s absence in § 1521. Maj. Op. at 13. But can those com-

parisons really confine our entire view of § 1521? The statutes

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20-10545 GRANT, J., Dissenting 7

cannot bear that weight. Both have distinct textual and structural

reasons to include the word “former” that do not apply here. As

Robinson points out, “that other statutes have been more specific in

their coverage of ‘employees’ and ‘former employees’ proves only

that Congress can use the unqualified term ‘employees’ to refer

only to current employees, not that it did so in this particular stat-

ute.” Robinson, 519 U.S. at 341–42 (citations omitted). Here too.

I will start with 18 U.S.C. § 111, which makes it unlawful to

assault certain federal officers or employees. Subsection (a)(1)

deals with current employees, and subsection (a)(2) with former.

But the two are treated separately for a reason: each subsection of

the statute criminalizes a different category of conduct. Against a

current officer, it is a crime to forcibly assault, resist, oppose, im-

pede, intimidate, or interfere with that person. 18 U.S.C.

§ 111(a)(1). By contrast, only forcible assault or intimidation qual-

ify against a former officer. Id. § 111(a)(2). So the provision for

current officers prohibits a much broader swath of conduct that

could affect a current officer’s ability to carry out his official duties.

And that conduct would not affect a former officer because she no

longer has any official duties to be resisted, opposed, impeded, or

interfered with. Because the conduct prohibited against former of-

ficials necessarily fills a smaller bucket than the conduct prohibited

against current officials, Congress made a reasonable choice to

treat them separately. But in § 1521, exactly the same conduct—

filing a false lien—is covered for exactly the same reasons against

both current and former officials.

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8 GRANT, J., Dissenting 20-10545

As for 18 U.S.C. § 115, that provision makes it unlawful to

impede or retaliate against federal officials by harming, or threat-

ening to harm, the officials or their family members. It specifically

references both former officials and the families of former officials,

which the majority says means that former officials must be ex-

cluded from § 1114 and, by extension, from § 1521. Maj. Op. at 11–

13. But if this seemingly duplicative language were reason enough

to read former officials out of § 1521, then § 115 would wipe out

much more of the statutory scheme. For example, § 115(a)(1)(B)

prohibits a variety of conduct against a “United States official, a

United States judge, a Federal law enforcement officer, or an offi-

cial whose killing would be a crime under” section 1114. Even

without breaking down these categories, there appears to be signif-

icant overlap between them. But that duplicative language does

not narrow the meaning of § 1114; no one is suggesting that § 1114

cannot cover a “United States official” or “a United States judge”

or “a Federal law enforcement officer” just because those officers

are separately enumerated in § 115. Likewise, the separate enu-

meration of “former” officers in § 115(a)(2) does not prove that

§ 1114—as incorporated in § 1521—does not include former offic-

ers in its own right.

The statutory history of § 115 also supports this understand-

ing. In its original form, § 115 was entirely silent about “former”

officers. Then, it was amended in 1988 to explicitly include protec-

tions for former officials’ families. See Pub. L. No. 100-690,

§ 6487(f), 102 Stat. 4181, 4386 (1988). The Fifth Circuit at one point

considered whether the pre-amendment version of § 115 applied to

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20-10545 GRANT, J., Dissenting 9

former officials. It grounded the conclusion that it did in the stat-

ute’s backward-looking “on account of” language. United States v.

Raymer, 876 F.2d 383, 390 (5th Cir. 1989). I think we have seen that

phrase before.

The court also found that the 1988 amendment extending

protection to the families of former officials provided “strong sup-

port” for the conclusion that the original statute “included in its

coverage death threats to retired officials for their official acts.” Id.

After all, it would make no sense to cover current officials, the fam-

ilies of current officials, and the families of former officials—but not

the former officials themselves. I agree with the Fifth Circuit that

the 1988 amendment was a belt-and-suspenders protection for for-

mer officials, clarifying what was already covered to ensure that the

addition of the family of former officials did not wrongly suggest

that former officials themselves were somehow excluded.

That said, it is not at all clear how much—if any—persuasive

value we should give to §§ 111 and 115 when interpreting § 1521.

They were not passed at the same time. Nor are they part of a

unified statutory scheme. That means the majority’s approach

does not mirror the Supreme Court’s analysis in Robinson. There,

the Court considered how the word “employees” was used in other

provisions of Title VII to help reach the conclusion that “employ-

ees” meant current and former employees in the relevant provi-

sion. Robinson, 519 U.S. at 342–45. But Title VII is not a “Title” in

the same way as Title 18. Title VII is one cohesive subunit of a

single law—the Civil Rights Act of 1964—that was passed at a

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10 GRANT, J., Dissenting 20-10545

particular moment in time, that covers a particular subject matter,

and that is completely codified within Chapter 21 of Title 42 of the

U.S. Code. So when the Supreme Court considered other uses of

the word “employees” in Title VII, it did so in the narrow context

of a single Act. Title 18, by contrast, is a sprawling and ever-chang-

ing collection of nearly every federal crime, not to mention the

rules of federal criminal procedure, spread across hundreds of chap-

ters and countless statutes.

While the use of a term in one part of the Civil Rights Act

can shed important light on the meaning of that word in another

part of the Act, the same cannot be said of the use (or absence) of a

term across the wide number of provisions codified under Title

18—particularly where those provisions were enacted and

amended at different times and by different Congresses, each with

different goals, intentions, and authors. That’s not to say that these

comparisons are totally irrelevant, but separate statutes passed at

different times do not have the heft to overcome a more natural

and less conflict-ridden reading of § 1521, especially when we con-

sider that plenty of other unrelated statutes—like those in Robinson

and Davis—do include former as well as current personnel even

though they do not use the word former. We should exercise more

caution before relying on comparisons between these disjointed

provisions to override the more natural and logical reading of

§ 1521.

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20-10545 GRANT, J., Dissenting 11

* * *

In recent years, this Court—and federal courts around the

country—have trended toward the use of textualism to resolve dif-

ficult questions of statutory interpretation. And for good reason;

the best evidence of a statute’s meaning is its text. But textualism

does not begin and end with dictionaries. Hypertechnical interpre-

tation can obscure a text’s true meaning just as easily as the right-

fully rejected purposivist strategies that were more popular in the

past. Because the best reading of § 1521 shows that it covers both

current and former officials, I respectfully dissent.

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20-10545 LAGOA, J., Dissenting 1

LAGOA, Circuit Judge, joined by BRANCH and GRANT, Circuit

Judges, Dissenting:

Title 18 U.S.C. § 1521 prohibits, among other things, the fil-

ing of a false lien or encumbrance against the property of any of-

ficer or employee of the United States “on account of the perfor-

mance of official duties.” In 2018, Timothy Jermaine Pate filed var-

ious false liens against Jacob Lew, the former Secretary of the

Treasury, and John Koskinen, the former Commissioner of the In-

ternal Revenue Service. There is no dispute that Pate filed the false

liens to retaliate against Lew and Koskinen for acts they performed

as part of their official duties. The twist here, and what makes this

a case of first impression for this Court, is that Pate filed the false

liens after Lew and Koskinen had left their positions with the fed-

eral government. We are therefore presented with the following

question: Does 18 U.S.C. § 1521 apply only to false liens and en-

cumbrances filed against current federal officers and employees in

retaliation for official actions they performed while in service with

the federal government? In other words, does the protection of-

fered by section 1521 vanish once the federal officer or employee

retires or otherwise leaves his position? The majority says it does.

Because a natural reading of section 1521, in full and in context,

protects both current and former federal officers and employees

who are retaliated against “on account of the performance of [their]

official duties,” I respectfully dissent.

I.

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2 LAGOA, J., Dissenting 20-10545

As with all questions of statutory interpretation, “we begin,

as we must, with a careful examination of the statutory text,” Hen-

son v. Santander Consumer USA Inc., 582 U.S. 79, 83 (2017), looking

“to the particular statutory language at issue, as well as the lan-

guage and design of the statute as a whole,” K Mart Corp. v. Cartier,

Inc., 486 U.S. 281, 291 (1988). Section 1521, the primary statute un-

der review, provides as follows:

Whoever files, attempts to file, or conspires to file, in

any public record or in any private record which is

generally available to the public, any false lien or en-

cumbrance against the real or personal property of an

individual described in [18 U.S.C.] section 1114, on ac-

count of the performance of official duties by that in-

dividual, knowing or having reason to know that such

lien or encumbrance is false or contains any materi-

ally false, fictitious, or fraudulent statement or repre-

sentation, shall be fined under this title or imprisoned

for not more than 10 years, or both.

18 U.S.C. § 1521. As its text conveys, section 1521 imposes liability

on certain actions taken against “individuals described in section

1114.” Id. Section 1521 thereby incorporates section 1114 in part,

as several other federal criminal statutes do in ways with various

degrees of similarity. See, e.g., 18 U.S.C. §§ 111, 115, 119, 876, 1201.

Section 1114(a) makes it a crime to kill or attempt to kill

any officer or employee of the United States or of any

agency in any branch of the United States Govern-

ment (including any member of the uniformed ser-

vices) while such officer or employee is engaged in or

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20-10545 LAGOA, J., Dissenting 3

on account of the performance of official duties, or

any person assisting such an officer or employee in

the performance of such duties or on account of that

assistance.

Section 1114 therefore protects two categories of individuals: (1) all

officers and employees of the United States and (2) all persons as-

sisting such officers or employees in the performance of their offi-

cial duties. See United States v. Caniff, 955 F.3d 1183, 1190 (11th Cir.

2020) (“[W]hen interpreting a statute, ‘any’ means ‘all.’ Congress’s

use of ‘any’ in [a statute] obliges us to give the [phrase that follows]

the broadest interpretation that it will reasonably bear.” (citations

omitted)). As for the first category of protected individuals, section

1114 makes it a crime to kill or attempt to kill officers or employees

of United States “while [they are] engaged in . . . the performance

of official duties” or “on account of the performance of official du-

ties.” 1 And as for the second category of protected individuals, sec-

tion 1114 makes it a crime to kill or attempt to kill persons while

they are “assisting [officers or employees of the United States] in

the performance of [their official] duties” or “on account of [such]

assistance.” Thus, for both categories, section 1114 imposes

1 Examples of acts contemplated by section 1114 include attempting to kill a

federal prosecutor for an investigation he spearheaded or a case he tried; at-

tempting to kill a Cabinet officer for a policy he implemented; attempting to

kill a federal law enforcement officer whose undercover work led to a success-

ful prosecution; and attempting to kill a federal judge for a sentence he im-

posed or an opinion he authored. Under the majority’s interpretation, a fed-

eral forum to prosecute such crimes disappears under section 1114 once the

individual’s tenure in office or term of employment ends.

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4 LAGOA, J., Dissenting 20-10545

liability on a defendant when either a temporal element is met, i.e.,

the defendant acted while the victim was engaged in the perfor-

mance of official duties or assisting therein, or a causal element is

met, i.e., the defendant acted “on account of” the performance of

official duties or the assistance therein.

With the text of section 1114 in mind, it is clear that section

1521 prohibits, among other things, the filing of “any false lien or

encumbrance against the real or personal property of an [‘officer or

employee of the United States’], on account of the performance of

official duties by that individual.” See 18 U.S.C. §§ 1114, 1521. No-

tably, section 1521 contains the same causal element as section

1114, i.e., the “on account of” language, but not the temporal ele-

ment, i.e., the “while engaged in” language. This makes sense. Un-

like an attempt to kill a federal officer or employee, which can oc-

cur as an immediate reaction to the performance of official duties,

the filing of a lien requires additional time and effort. In the ordi-

nary course, such a filing can be made in retaliation only after the

performance of official duties, not simultaneously. Section 1521

therefore addresses retaliatory acts taken against federal officers or

employees after the performance of their official duties.

As previewed, the question we face today is whether section

1521 stops applying once a federal officer or employee retires or

otherwise leaves his federal office or employment. I do not think

it does.

II.

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20-10545 LAGOA, J., Dissenting 5

The majority says that, by its plain terms, section 1521 must

stop applying once the relevant federal officer or employee leaves

his position. In support, the majority points to various dictionary

definitions of the words “officer” and “employee,” all of which use

the present-tense. Based on those definitions, the majority sup-

poses that section 1521 protects only those who were “officer[s]”

or “employee[s]” at the time of the relevant criminal act. See Maj.

Op. at 9–10. But, in reaching that conclusion, the majority pins the

terms “officer” and “employee” to the wrong point in time. What

matters, as far as section 1521 is concerned, is not that a victim held

a federal position at the time of the defendant’s criminal act, but

that he held a federal position when he performed the “official du-

ties” for which he eventually faced criminal retaliation.

This interpretation is consistent with how ordinary people

use words like “officer” and “employee”; we sometimes use them

in a backward-looking sense, pinned to a point in the past. Con-

sider a judge who says, “I have a policy of not writing letters of

recommendation for my law clerks.” Most ordinary listeners, I

think, would assume that the judge does not write letters of rec-

ommendation for any current or former law clerks. Alternatively,

imagine a soon-to-be groom who says, “I am not going to invite

any of my bosses to my wedding.” Many would assume that the

groom intends to exclude all the bosses that he ever had, as op-

posed to only all of his current bosses. Lastly, consider a college

sophomore who, in complaining about the difficulty of school,

says, “All of my professors have assigned work over holiday

breaks.” Perhaps she means only her current professors, but she

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6 LAGOA, J., Dissenting 20-10545

might mean all the professors that she had up until that point. As

these examples illustrate, we sometimes in the ordinary course of

speaking use these sorts of nouns, unaccompanied by any “former”

language, to include individuals who formerly qualified as such.

And, when we do, context often reveals our intended meaning. 2

2 The majority poses a hypothetical law that prohibits “any ‘officer or em-

ployee’ of the IRS from taking money from accounting firms.” See Maj. Op.

at 10–11. Would such a law prohibit accountants who previously worked for

the IRS from ever accepting a job with a private firm? The answer is likely not.

And it most certainly would not if the hypothetical law prohibited “any ‘officer

or employee’ of the IRS from taking money from accounting firms while such

officer or employee is engaged in official duties”—in other words, used lan-

guage similar to that found in section 1114.

My thinking on this is informed, to some degree, by my understanding

of the hypothetical law in the context of our real-world conditions. It is ex-

ceedingly common for government entities to restrict their current employees

from having other jobs and receiving money from third parties, and these re-

strictions make sense: they help prevent at least the appearance of impropriety

among individuals who may be viewed as representatives of the government

and possess significant power.

But if the hypothetical law prohibited “any officer or employee of the

IRS from taking money from accounting firms on account of the performance

of official duties by that individual,” the answer is not as obvious. While awk-

wardly phrased, that hypothetical statute may well be a congressional imposi-

tion of a post-employment ethical screen on former IRS officers and employ-

ees from receiving compensation or taking employment based on a matter

they worked on during their tenure at the IRS. All this is to say that real-world

conditions and practices supply information when we consider whether the

phrase “officer or employee,” as used in the hypothetical law presented, in-

cludes former officers and employees. Context necessarily is part of the anal-

ysis.

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20-10545 LAGOA, J., Dissenting 7

III.

The majority seems to agree that “words like ‘officer’ and

‘employee’ can sometimes include formers,” depending on the

context. Maj. Op. at 28; see also id. at 25–28. And the Supreme

Court certainly holds that they can. As the majority explains, the

Supreme Court has twice recognized that such nouns can include

formers, first in Davis v. Michigan Department of Treasury, 489 U.S.

803 (1989), and then again in Robinson v. Shell Oil Co., 519 U.S. 337

(1997).

A.

In Davis, the question presented was whether retirement

benefits paid to former federal employees were covered by 4 U.S.C.

§ 111(a), which reads as follows:

The United States consents to [state] taxation of pay

or compensation for personal service as an officer or

employee of the United States . . . if the taxation does

not discriminate against the officer or employee be-

cause of the source of the pay or compensation.

The State of Michigan argued that 4 U.S.C. § 111(a) applies only to

current employees of the federal government based on the defini-

tion of the word “employee” and its use of the present tense. See

Brief for Appellees, Davis, 489 U.S. 803 (No. 87-1020), 1988 WL

1025812, at *38–43. Michigan highlighted the statute’s second use

of the phrase “officer or employee,” which, unlike the first, is not

accompanied by any “as”-like lookback (to borrow a term from the

majority). See id. at *41–42. Michigan thus effectively argued that,

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8 LAGOA, J., Dissenting 20-10545

even though the statute’s first use of the phrase “officer or em-

ployee” is pinned in time to the performance of “personal services”

in the past, the statute’s second use of the phrase “officer or em-

ployee” is not and thereby introduced a current-status require-

ment. See id. The Supreme Court, however, rejected this “hyper-

technical reading” of the disputed language “in isolation.” See Da-

vis, 489 U.S. at 809–10.

The Supreme Court determined that 4 U.S.C. § 111(a)’s two

uses of both of the phrases “officer or employee” and “pay or com-

pensation” must mean the same thing and be pinned to the same

period of time. Id. at 809. In doing so, the Court emphasized the

need to read “the words of a statute . . . in their context and with a

view to their place in the overall statutory scheme.” Id. From such

a vantage point, the Court found it “difficult to imagine that Con-

gress consented to discriminatory taxation of the pensions of re-

tired federal civil servants while refusing to permit such taxation of

current employees.” Id. at 810. Considering the “implausib[ility]”

of such a meaning, the Court concluded that the “overall meaning

of [4 U.S.C.] § 111 is unmistakable” and includes both former and

current federal employees, even if “Congress could perhaps have

used more precise language.” Id.

Davis bears significant relevance to this case. Section 1521’s

“on account of” language performs the same role as the “personal

service” language in 4 U.S.C. § 111(a): both imply a lookback to the

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20-10545 LAGOA, J., Dissenting 9

time of federal service. 3 Thus, according to the logic of Davis, sec-

tion 1521’s first, incorporated use of the phrase “officer or em-

ployee” should mean the same thing and be pinned to the same

period of time as the second, implied use of the same phrase. This

is consistent with my interpretation of section 1521: both of the

non-explicit references to “officer[s] or employee[s]” refer to the

point in time when the victim performed his official duties and

therefore cover victims who are presently, i.e., at the time of the

criminal conduct, no longer “officer[s] or employee[s] of the United

States.”

Further, as the Supreme Court did with respect to 4 U.S.C.

§ 111, I find it “implausible” that section 1521 means to exclude for-

mer officers and employees. See Davis, 489 U.S. at 810. “It is diffi-

cult to imagine that Congress” meant to offer protection to current

federal officers and employees from retaliatory liens “on account

of the performance of [their] official duties,” but meant to leave

former federal officers and employees out to dry. Id.; see also infra

Section IV.C.

The majority’s main explanation for why Davis is distin-

guishable from this case has to do with the order of phrases in the

relevant statutes. See Maj. Op. at 27–28. In Davis, section 111(a)

first introduces the phrase “officer or employee” accompanied by

3 It seems clear that the reference to “official duties” is not meant to cover a

federal officer or employee’s official duties in some unrelated capacity, say, as

an officer of a charitable organization in his free time. The reference is tied

exclusively to the “officer or employee of the United States” language.

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10 LAGOA, J., Dissenting 20-10545

an “as”-like lookback and then uses the phrase again by itself. On

the other hand, section 1521 first incorporates the phrase “officer

or employee” by itself and then implicitly uses the phrase again

with an “as”-like lookback. This, according to the majority, makes

all the difference, as “readers naturally understand subsequent

phrases in light of antecedent ones.” Maj. Op. at 27–28. While that

may generally be true, I do not buy that the order of phrases in

section 1521 would be so significant to an ordinary reader that he

would fail to understand what, in my view, is the clear meaning of

the statute.

B.

The other relevant Supreme Court case, Robinson v. Shell Oil

Co., centered around the question of whether the term “employ-

ees,” as used in section 704(a) of Title VII of the Civil Rights Act, 4

includes former employees. 519 U.S. at 339. The Court found the

term to be “ambiguous as to whether it excludes former employ-

ees,” since § 704(a) uses neither “former employees” nor “current

employees” and does not contain any other “temporal qualifier.”

Id. at 341. In resolving that ambiguity, the Court considered two

things: (1) how the term is used elsewhere in Title VII and (2) the

primary purpose of section 704(a). Id. at 345–46. Both of those

considerations individually weighed in favor of including former

4 Section 704(a) “makes it unlawful for ‘an employer to discriminate against

any of his employees or applicants for employment’ who have either availed

themselves of Title VII’s protections or assisted others in so doing.” Robinson,

519 U.S. at 339 (quoting 42 U.S.C. § 2000e-3(a)).

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20-10545 LAGOA, J., Dissenting 11

employees. As for how the term “employees” is used elsewhere in

Title VII, the Court explained that other sections use the term in

describing remedial mechanisms for “discriminatory discharge,”

including “reinstatement.” Id. at 345. Such mechanisms “would

necessarily be brought [only] by a former employee.” Id. As for

the primary purpose of section 704(a), the Court explained that sec-

tion 704(a) is aimed at offering protection from employment retal-

iation in order to “[m]aintain[] unfettered access to statutory reme-

dial mechanisms.” Id. at 346. The Court agreed with the position

that reading section 704(a) to exclude former employees would “vi-

tiate much of the protection afforded by [section] 704(a)” and cre-

ate “a perverse incentive for employers to fire employees who

might bring Title VII claims.” Id. at 345–46. Based on these two

congruous considerations, the Court concluded that the term “em-

ployees,” as used in section 704(a), includes former employees. See

id. at 346 (“It being more consistent with the broader context of

Title VII and the primary purpose of [section] 704(a), we hold that

former employees are included within [section] 704(a)’s cover-

age.”).

With respect to the question before us here—i.e., whether

the phrase “officer or employee,” as incorporated from section

1114(a) by section 1521, includes former officers and employees—

Robinson, at a high level of generality, certainly reinforces the un-

derstanding that terms like “employees” can sometimes include

former employees. See id. at 341–42, 346. Upon closer inspection,

though, Robinson presents mixed signals as to whether section

1521’s incorporation of the phrase “officer or employee” is former-

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12 LAGOA, J., Dissenting 20-10545

inclusive. This is because the two considerations on which the Su-

preme Court relied in Robinson seem to point in different directions

in this case.

As for the first Robinson consideration, which for our pur-

poses is how the phrase “officer or employee” is used or incorpo-

rated by other sections of Title 18, the inclusion of “former[]” lan-

guage alongside the cross-references to section 1114 in sections 111

and 115, as amended, suggests that the bare cross-reference to sec-

tion 1114 in section 1521 does not include former officers and em-

ployees. See 18 U.S.C. § 111(a)(2) (discussing “any person who for-

merly served as a person designated in section 1114” (emphasis

added)); id. § 115(a)(2) (discussing “member[s] of the immediate

family of any person who formerly served as a person designated in

paragraph (1),” which itself discusses “member[s] of the immediate

family of . . . an official whose killing would be a crime under sec-

tion 1114” (emphasis added)). But a key difference between Robin-

son and this case is that the statute at issue in Robinson was part of

Title VII of the Civil Rights Act, which is much more cohesive than

Title 18 of the U.S. Code.5 It therefore seems that this first

5 Title VII is all part of the same act and aimed at addressing the specific issue

of employment discrimination. It is a relatively cohesive and interrelated stat-

utory scheme. The same is true of the Consolidated Farm and Rural Devel-

opment Act, which is entirely aimed at promoting agriculture and which the

majority implicitly references by citing Freemanville Water Sys., Inc. v. Poarch

Band of Creek Indians, 563 F.3d 1205 (11th Cir. 2009). See Maj. Op. at 12–13.

Title 18 of the U.S. Code, on the other hand, addresses a variety of federal

crimes. Although multiple sections of Title 18 cross-reference section 1114 in

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20-10545 LAGOA, J., Dissenting 13

consideration carries less weight here, in connection with section

1521 and the rest of Title 18, than it did in Robinson, in connection

with section 704(a) of Title VII and the rest of Title VII.6 Accord-

ingly, this point is not dispositive. See Robinson, 519 at 341–42

(“[T]hat other statutes have been more specific in their coverage of

‘employees’ and ‘former employees’ proves only that Congress can

use the unqualified term ‘employees’ to refer only to current em-

ployees, not that it did so in this particular statute.” (citations omit-

ted)).

As for the second Robinson consideration (i.e., the primary

statutory purpose), the primary purpose of section 1521 supports

interpreting the phrase “officer or employee” to include former of-

ficers and employees. This is made clear by the Supreme Court’s

analysis of 18 U.S.C. § 111 in United States v. Feola, 420 U.S. 671

(1975). That statute makes it a crime to assault federal officers and

similar ways, those sections do not share the same level of cohesion as the

sections of Title VII.

6 Moreover, the best indicia of the meaning of the phrase at issue come from

the text of sections 1114 and 1521—the two statutes that “provide the field of

battle” on which we duel. Maj. Op. at 7; see infra Part IV (discussing three

contextual indicators in support of a former-inclusive reading of the phrase

“officer or employee,” all of which are tied to the text of sections 1114 and

1521). This is because that text is closer to the heart of the matter than the

text of other statutory sections of Title 18. Indeed, this is consistent with the

order of the Supreme Court’s analysis in Robinson, which first considered

whether the statute at issue there contained any plain temporal qualifier, then

considered other sections of Title VII, and then considered other statutes alto-

gether. See Robinson, 519 U.S. at 341–42.

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14 LAGOA, J., Dissenting 20-10545

employees and, as mentioned, is one of the several sections of Title

18 that cross-references section 1114. The Supreme Court recog-

nized that (at least part of) the overall purpose of 18 U.S.C. § 111 is

to “protect both federal officers and federal functions” and to pro-

vide a federal forum in which to prosecute criminals who retaliate

against federal officers. Feola, 420 U.S. at 679–84. Upon review of

their texts, sections 1114 and 1521 seem to share this described pur-

pose. See infra Section IV.C. And interpreting the phrase “officer

or employee” to include former officers and employees furthers

that purpose more than the majority’s interpretation does.

Thus, on balance, Robinson favors a former-inclusive reading

of section 1521.

* * *

So, to step back and regroup: the Supreme Court has recog-

nized, and everyday experience confirms, that nouns like “officer”

and “employee” sometimes include individuals who formerly qual-

ified as such and that we must look to context for an indication one

way or the other. And the majority concedes as much. See Maj.

Op. at 28. Let’s now turn to the contextual indicators in support of

a former-inclusive interpretation of section 1521.

IV.

There are three main contextual indicators that the phrase

“any officer or employee of the United States,” as incorporated

from section 1114(a) by section 1521, includes former officers and

employees of the United States or, put differently, is pinned to the

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20-10545 LAGOA, J., Dissenting 15

point of time at which the “performance of official duties” oc-

curred.

A.

The first contextual indicator in support of a former-inclu-

sive reading of section 1521’s incorporation of the phrase “officer

or employee” is section 1521’s subsequent “on account of” clause.

Under a natural reading of section 1521, the “on account of” clause

is the key language of the statute. It reveals the law’s primary aim:

to criminalize the filing of liens in retaliation for the performance of

official, federal duties.

Critically, the “on account of” clause is backward-looking.

We know this because the phrase “on account of,” in this context,

means “because of.” See Account, Oxford English Dictionary (online

ed.) (explaining that the phrase “on account of” means “[f]or the

sake of, in consideration of; by reason of, because of”)7; see also On

Account of Something, Cambridge Dictionary (online ed.). 8 The phrase

therefore, by definition, describes something that is responsive to

some earlier event or receipt of information. And, as explained

above, this phrase is immediately followed by a reference to “offi-

cial duties,” which implicitly conveys an “as”-like lookback in con-

nection with the “officer [or] employee” language. See supra

7 https://www.oed.com/view/Entry/1194?rskey=mcQf6i&result=1&isAd-

vanced=false#eid213927306 (last visited Oct. 10, 2023).

8 https://dictionary.cambridge.org/dictionary/english/on-account-of (last

visited Oct. 10, 2023).

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16 LAGOA, J., Dissenting 20-10545

Section III.A. Moreover, section 1521 does not contain section

1114’s temporal element, i.e., the “while engaged in” language; in-

stead, liability hinges on the causal element, i.e., the “on account

of” clause (which describes retaliation for the past performance of

official duties). See supra Part I. All of this strongly indicates that

the “officer [or] employee” language similarly is backward-looking

and is pinned to the same point of time as the “performance of of-

ficial duties.”

The majority contends that the “on account of” clause “can’t

expand the scope of [the] phrase [‘officer or employee’] beyond its

ordinary meaning.” Maj. Op. at 16. I agree. But, for the reasons

discussed, the phrase has two possible ordinary meanings: one that

is former-inclusive and one that is former-exclusive. See supra Part

II. The “on account of” clause can therefore properly indicate

which of those two ordinary meanings applies, without unduly ex-

panding the meaning of any terms.

B.

The second contextual indicator in support of a former-in-

clusive reading of the phrase “officer or employee,” as incorporated

from section 1114(a), is section 1114(a)’s assisting-party language.

As a refresher, section 1114 offers protection to two catego-

ries of individuals: (1) all officers and employees of the United

States and (2) all persons assisting such officers or employees in the

performance of their official duties. See § 1114(a); see also supra Part

I. Critically, nothing under a plain reading of section 1114(a)’s as-

sisting-party clause suggests that the protection offered to such

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20-10545 LAGOA, J., Dissenting 17

parties ends upon the termination of the federal officer or em-

ployee’s employment. And, as the government has pointed out, it

would be “anomalous” to give “greater protection to a private per-

son who once assisted with a single official duty than . . . to a fed-

eral official who rendered years of service to the nation.” En Banc

Br. of Appellee at 22.

The majority concedes that this is “one loose interpretive

end,” but suggests that “we needn’t decide here the temporal scope

of [the assisting-party clause]” because this case does not concern

any assisting party. See Maj. Op. at 18–19 n.3. As I read the assist-

ing-party clause, there isn’t much for us to decide: nothing in the

clause indicates that the protection offered to assisting-parties ends

upon the termination of the federal officer or employee’s employ-

ment. And, because section 1521 incorporates the phrase “officer

or employee” from section 1114(a), we ought to consider section

1114 as a whole—or, at minimum, the entirety of subsection (a).

This is called for because the whole text of section 1114 informs the

meaning of the particular phrase of section 1114(a) at issue. See

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation

of Legal Texts § 24, at 167 (2012) (explaining that judicial interpreters

should consider the whole text of a document because “[c]ontext is

a primary determinant of meaning”).

Ultimately, the majority says that the legislative decision to

offer greater protection to assisting parties, “if only as a means of

incentivizing their cooperation,” would not be so absurd as to war-

rant us to rewrite legislation. See Maj. Op. at 18–19 n.3. Although

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18 LAGOA, J., Dissenting 20-10545

greater protection for assisting parties may not be absurd, I submit

that this reading of § 1521 is at least as “implausible” as the State of

Michigan’s statutory interpretation rejected in Davis. See 489 U.S.

at 810.

This implausibility is especially evident once you consider

that an individual might simultaneously qualify as both an “officer

or employee of the United States” and a “person assisting such an

officer or employee in the performance of [official] duties.”

§ 1114(a). Indeed, there is no explicit indication that those two clas-

ses of people are meant to be mutually exclusive. See id. So, imag-

ine a federal employee who is part of a team and, in performing his

own official duties, assists his coworkers in the performance of

their own duties. According to the majority’s not-so-absurd read-

ing of section 1114, this hypothetical employee would be entitled

to lifelong protection from retaliatory attempts on his life only in-

sofar as they relate to actions he performed that assisted his

coworkers; to the extent he worked alone, he would be protected

only until he leaves his job. Again, this arrangement seems “im-

plausible,” which suggests the alternative is more likely. See Davis,

489 U.S. at 810.

In sum, there is no indication in the assisting-party clause of

section 1114 that the protection offered to assisting parties is con-

ditioned on the continued employment of the assisted federal of-

ficer or employee. This suggests that the more-ambiguous protec-

tion offered by section 1114 to federal “officer[s] [and] em-

ployee[s]” similarly is not conditioned on their own continued

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20-10545 LAGOA, J., Dissenting 19

employment, as otherwise the statute would favor parties who as-

sist federal officers and employees over the federal officers and em-

ployees themselves. And there is no reason to think that this sug-

gestion is not equally applicable to section 1521, which incorpo-

rates the phrase “officer and employee” as used in section 1114.

C.

The third contextual indicator in support of a former-inclu-

sive reading of the phrase “officer or employee” is the shared pur-

pose of sections 1114 and 1521. Of course, it is axiomatic that a

statute’s purpose “must be derived from the text” itself and “cannot

be used to contradict the text” or used alone to justify it. United

States v. Bryant, 996 F.3d 1243, 1257 (11th Cir. 2021) (quoting Bellitto

v. Snipes, 935 F.3d 1192, 1201 (11th Cir. 2019)). But a statute’s pur-

pose, when derived from the statutory text itself, “is a constituent

of meaning and can be helpful in understanding the ‘ordinary, con-

temporary, common meaning’ of the statute’s language.” Id.

(quoting United States v. Haun, 494 F.3d 1006, 1009 (11th Cir. 2007));

see also Scalia & Garner, Reading Law, supra, § 2, at 56–57 (“[W]ords

are given meaning by their context, and context includes the pur-

pose of the text. . . . Purpose sheds light . . . on deciding which of

various textually permissible meanings should be adopted.”).

As discussed in Section III.B supra, in Feola, the Supreme

Court recognized that (at least part of) the overall purpose of sec-

tion 111 is to “protect both federal officers and federal functions”

and to provide a federal forum in which to prosecute criminals who

retaliate against federal officers. 420 U.S. at 679–84. Section 111

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20 LAGOA, J., Dissenting 20-10545

makes it a crime to assault federal officers and employees and, as

mentioned, is one of the sections of Title 18 that cross-references

section 1114. The text of sections 1114 and 1521, when read in light

of Feola, have a shared purpose of “protect[ing] both federal officers

and federal functions” and providing a federal forum in which to

prosecute criminals who retaliate against federal officers. 420 U.S.

at 679–84. And, as explained, interpreting the phrase “officer or

employee” to include former officers and employees advances that

purpose more than the majority’s interpretation does. See supra

Section III.B.

The majority is skeptical of this reasoning. See Maj. Op. at

23–24; see also Judge Rosenbaum Conc. Op. at 4–5. To be sure, we

must be cautious when venturing into the consideration of statu-

tory purpose, since every provision of law “can be said to have a

number of purposes, which can be placed on a ladder of abstrac-

tion” and easily manipulated both consciously and otherwise.

Scalia & Garner, Reading Law, supra, at 18. But in this case, we ap-

ply the Supreme Court’s holding in Feola, and we need consider

that holding only in conjunction with other indicators to decide

which of the two textually permissible meanings of the phrase at

issue applies. This approach neither “overread[s] Feola’s ‘federal

function’ reference” nor improperly subordinates text to purpose.

See Maj. Op. at 23.

* * *

In sum, the “on account of” clause of section 1521, the as-

sisting-party language of section 1114, and the purpose shared by

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20-10545 LAGOA, J., Dissenting 21

both sections (as indicated by their text and Supreme Court prece-

dent) indicate that the phrase “officer or employee of the United

States,” as incorporated from section 1114 by section 1521, covers

former officers and employees. These indicators overcome the ar-

guments to the contrary.

V.

Having reviewed the three main contextual indicators in

support of a former-inclusive reading of section 1521, there are two

other areas that warrant further discussion: the decisions of our sis-

ter circuits and the fair warning principle.

A.

The majority’s interpretation of the phrase “officer or em-

ployee” is in tension with the decisions of the two other circuit

courts that have addressed substantially similar questions on ap-

peal.

In United States v. Raymer, 876 F.2d 383 (5th Cir. 1989), the

Fifth Circuit considered whether section 115’s cross-reference to

the version of section 1114 then in effect covered retirees. See id. at

389–91. Notably, section 115, as amended in 1988, explicitly of-

fered protection to the family members of former federal officers

but did not explicitly indicate that the former officers themselves

were covered. Id. at 390. The Fifth Circuit concluded that that

disparity was simply the result of Congress “[feeling] no need to

state separately in the amendment that retired officials themselves

were protected because Congress felt that they already were cov-

ered.” Id. The alternative interpretation, according to the Fifth

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22 LAGOA, J., Dissenting 20-10545

Circuit, would compel an “irrational conclusion”: “that Congress

was concerned about protecting the families of retired officials but

had no concern at all about protecting the retired officials them-

selves.” Id. The Fifth Circuit also recognized what it described as

the “obvious purpose” of section 115: “to free public officials from

retaliation for their official acts,” a threat that “remains just as in-

hibiting to proper official acts even after that official retires as it is

during his or her active tenure.” Id. at 391.

About a decade later, in United States v. Martin, 163 F.3d 1212

(10th Cir. 1998), the Tenth Circuit followed Raymer and held that a

local police detective who had previously been “deputized to par-

ticipate in a federal investigation” but had “stopped working with

the FBI” by the time of the criminal act nevertheless constituted a

“federal officer” under sections 115 and 1114. Id. at 1215. In the

alternative, the Tenth Circuit held that the detective qualified as an

assisting party. Id. The Tenth Circuit has applied Martin in two

subsequent cases. See United States v. Holder, 256 F.3d 959, 964–65

(10th Cir. 2001) (“Actions done in retaliation for official duties even

after official duties are completed remain protected by § 115, the

court stated [in Martin], deriving this result from § 111.”); United

States v. Wolff, 370 F. App’x 888, 895–96 (10th Cir. 2010) (“The logic

of Martin and Raymer compels us to agree with the district court

that [18 U.S.C. §] 876(c)’s offense of addressing threatening com-

munications to a government official applies to threatening com-

munications sent to retired government officials on account of the

performance of their official duties.”).

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20-10545 LAGOA, J., Dissenting 23

While the approaches taken by the Fifth and Tenth Circuits

differ from the way I analyze § 1521, I neither disagree with the

holdings they reached nor believe it necessary to create a circuit

split. 9

B.

In promoting its former-exclusive reading of the phrase “of-

ficer or employee,” the majority mentions that “[c]ourts have long

recognized that ‘before a man can be punished as a criminal under

the Federal law his case must be plainly and unmistakably within

the provisions of some statute.’” Maj. Op. at 24 (quoting United

9 The majority takes different approaches to two different discussions of con-

gressional “silence.” Compare Maj. Op. at 12, with Maj. Op. at 21–22. In light

of Congress’s decision to amend sections 111 and 115 to include “former[]”

language, the majority considers Congress’s continued inaction with respect

to section 1521, i.e., its failure to add similar “former[]” language to section

1521, to be “controlling.” See Maj. Op. at 12 (quoting Freemanville, 563 F.3d at

1209). Conversely, when pointed to Congress’s continued inaction in the

wake of Raymer and Martin, both of which support a former-inclusive reading

of the phrase at issue here, the majority rejects the suggestion that that inac-

tion conveys any information. See Maj. Op. at 21–22. Of course, these two

approaches are not necessarily inconsistent, as it is fair to assume that Con-

gress is more likely to be aware of related statutes than the interpretive deci-

sions of our sister courts. But cf. United States v. Hoy, 137 F.3d 726, 730 (2d Cir.

1998) (considering the fact that, at the time, “Congress ha[d] apparently made

no attempt to circumscribe [the] holdings” of courts that had broadly con-

strued the meaning of “official duties” in determining that an off-duty deputy

U.S. Marshal who helped a woman whose purse had been snatched was cov-

ered by section 111). As previously discussed, the best indicia of the meaning

of the phrase at issue here comes from the text of sections 1114 and 1521—

Congress’s actual speech on the matter. See supra note 6.

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24 LAGOA, J., Dissenting 20-10545

States v. Gradwell, 243 U.S. 476, 485 (1917)). This is an apparent nod

to the fair warning principle of criminal law. See United States v.

Lanier, 520 U.S. 259, 265 (1997) (“[N]o man shall be held criminally

responsible for conduct which he could not reasonably understand

to be proscribed.” (quoting Bouie v. City of Columbia, 378 U.S. 347,

351 (1964))); see also Judge Rosenbaum Conc. Op. at 1–2 (articulat-

ing a fair warning concern).

The Supreme Court has recognized “three related manifes-

tations” of the fair warning principle: (1) the vagueness doctrine;

(2) the rule of lenity; and (3) the due process requirement of fair

disclosure. Lanier, 520 U.S. at 266. Fundamentally, “[i]n each of

these [manifestations], the touchstone is whether the statute, either

standing alone or as construed, made it reasonably clear at the rel-

evant time that the defendant’s conduct was criminal.” Id. at 267.

Putting aside the rule of lenity, which the majority does not

invoke and which is inapplicable here, 10 the Supreme Court’s deci-

sion in Feola effectively closed the door for any fair warning argu-

ment in this case. As discussed, Feola concerned 18 U.S.C. § 111,

10 We resort to the rule of lenity “only when a criminal statute contains a

‘grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from

which aid can be derived,’ [we] ‘can make no more than a guess as to what

Congress intended.’” Ocasio v. United States, 578 U.S. 282, 295 n.8 (2016) (quot-

ing Muscarello v. United States, 524 U.S. 125, 138–39 (1998)); accord United States

v. Garcon, 54 F.4th 1274, 1285 (11th Cir. 2022) (en banc) (recognizing that the

rule of lenity applies when there is a “grievous ambiguity”). Because this case

does not present a “grievous ambiguity,” lenity does not come into play. See

Raymer, 876 F.2d at 390–91 (concluding similarly that the rule of lenity did not

factor into its interpretive analysis of section 115).

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20-10545 LAGOA, J., Dissenting 25

the federal statute that criminalizes the act of assaulting an officer

or employee of the United States. See supra Sections III.B., IV.C.;

see also Feola, 420 U.S. at 672–73. The defendants in Feola had as-

saulted the buyers on the other end of a drug deal who, unbe-

knownst to the defendants, were undercover narcotics agents. 420

U.S. at 674–75. At trial, a jury convicted the defendants of assault-

ing and conspiring to assault federal officers but, on appeal, the Sec-

ond Circuit reversed on the grounds that knowledge of the victim’s

official identity is an essential element of conspiracy to assault a

federal officer. Id. at 675–76. The Supreme Court reversed the Sec-

ond Circuit’s decision and held that neither section 111 nor its re-

lated conspiracy statute “require[s] that [the defendant] know the

official status of his victim.” Id. at 687. The federal “officer or em-

ployee” requirement incorporated from section 1114, according to

the Supreme Court, was a jurisdictional requirement of 18 U.S.C.

§ 111 and not an element of the substantive offense. Id. at 676–77.

The Supreme Court explained this in no uncertain terms:

All [18 U.S.C. § 111] requires is an intent to assault,

not an intent to assault a federal officer. . . . This in-

terpretation poses no risk of unfairness to defendants.

It is no snare for the unsuspecting. Although the per-

petrator of a narcotics ‘rip-off,’ such as the one in-

volved here, may be surprised to find that his in-

tended victim is a federal officer . . . he nonetheless

knows from the very outset that his planned course

of conduct is wrongful. The situation is not one

where legitimate conduct becomes unlawful solely

because of the identity of the individual or agency

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26 LAGOA, J., Dissenting 20-10545

affected. In a case of this kind the offender takes his

victim as he finds him. The concept of criminal intent

does not extend so far as to require the actor under-

stand not only the nature of his act but also its conse-

quence for the choice of a judicial forum.

Id. at 684–85; see also id. at 676 n.9.

Feola’s reasoning clearly applies to section 1521. Like section

111, section 1521 incorporates section 1114 and concerns conduct

that is known to generally be illegal, not “conduct [that] becomes

unlawful solely because of the identity of the individual . . . af-

fected.” Feola, 420 U.S. at 685. Indeed, section 1521’s state-law an-

alogues prohibit the filing of false liens generally, and do not de-

pend upon the identity of the victim. See, e.g., Ga. Code § 16-10-

20.1. Thus, under Feola, it does not matter whether Pate under-

stood his victims to be federal officers or employees as either a fac-

tual or legal matter; he needed to “entertain merely the criminal

intent to do the act[],” not the intent to do the act to a specific type

of person. Feola, 420 U.S. at 686. And because Pate had that general

intent, he “[took] his victim[s] as he [found them].” Id. at 685. It

would be inconsistent with Feola for Pate to escape liability on the

basis of fair notice simply because he may not have known pre-

cisely who qualified as a federal “officer or employee” at the time

of his unlawful conduct.

VI.

Section 1521 makes it a crime to file a false lien against an

officer or employee of the United States “on account of” such per-

son’s “performance of official duties.” The majority says that

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20-10545 LAGOA, J., Dissenting 27

section 1521 must only protect current officers and employees of

the United States. I disagree. Section 1521 protects officers and

employees of the United States from retaliatory conduct. And re-

taliatory conduct can of course occur after officers or employees

retire, and that is precisely what happened here. Given the fact that

we sometimes use nouns like “officer” and “employee” to include

people who formerly qualified as such, I do not think section 1521’s

incorporation of the phrase “officer or employee” excludes former

officers and employees from the statute’s protection. After closely

analyzing the full text of both section 1521 and the statute from

which it borrows the phrase at issue, section 1114, I respectfully

dissent and would affirm Pate’s convictions on Counts One, Five,

Six, and Eight of the Superseding Indictment.