The opinion
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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12991
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY J. SMITH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cr-00032-MCR-1
____________________
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2 Opinion of the Court 23-12991
Before WILLIAM PRYOR, Chief Judge, and BRASHER and ABUDU, Cir-
cuit Judges.
PER CURIAM:
This is the second occasion that Timothy Smith has chal-
lenged his conviction for extortion. 18 U.S.C. § 875(d). In his earlier
appeal, we affirmed Smith’s conviction for extortion, id., and va-
cated his conviction for theft of trade secrets, id. § 1832(a)(1), and
related sentencing enhancements for lack of venue. United States v.
Smith, 22 F.4th 1236 (11th Cir. 2022), aff’d, 599 U.S. 236 (2023). On
remand, the district court rejected Smith’s new argument that his
conviction for extortion must be vacated based on an intervening
change in controlling law in Counterman v. Colorado, 600 U.S. 66
(2023), and resentenced Smith. On appeal from resentencing,
Smith argues that we must vacate his conviction for extortion be-
cause the jury instructions failed to comport with Counterman and
that the district court erred in ruling that our mandate rule pre-
vented it from considering this challenge on limited remand. We
affirm.
I. BACKGROUND
The facts underlying Smith’s criminal conduct are presented
in detail in our earlier decision. See Smith, 22 F.4th at 1238–42. In
that decision, we explained how Smith, a software engineer and
avid angler, used a web application to access private artificial reef
coordinates in the Gulf of Mexico that had been collected, pro-
cessed, and offered for sale by Tristan Harper and Travis Griggs
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23-12991 Opinion of the Court 3
through their business StrikeLines. After Smith informed the own-
ers that he obtained their coordinates and the owners asked their
website developer Ralph Haynes to add extra layers of security to
their website, Smith posted on Facebook about possessing Strike-
Lines’s coordinates and invited viewers to “direct message” him
about coordinates. Because Smith’s posts generated complaints
from customers, Griggs asked Smith to explain how he continued
to access their data despite the upgraded security, but Smith re-
fused and told Griggs that what Haynes had done with the website
security was “enough to deter 99.9 percent of users.” Id. at 1239.
Smith then sent Griggs a picture revealing that Smith still could ac-
cess the internal data and coordinates.
We explained in our opinion for Smith’s earlier appeal how
he then extorted Griggs and Harper:
After communications about how the Face-
book posts were “creating a lot of trouble” by “caus-
ing actual harm to [Strikelines’s] reputation” and the
owners’ “livelihood,” Smith told Griggs, “How about
this, I’ll delete the post, won't ever say anything else
about it, even to those that have contacted me. I need
help with one thing, though.” Griggs replied, “What’s
that?” Smith said, “I need deep grouper numbers,
div[e]able, 160 to 210. I’ll also help you fix your prob-
lem free of charge. But me fixing your problem has to
remain strictly between me and you, and I mean
strictly.” Griggs responded that if Smith deleted his
Facebook posts that they might be able to talk about
Smith’s proposition. And Smith said, “I’ll delete the
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4 Opinion of the Court 23-12991
post in good faith, but I’m not sure I’m really inter-
ested in side [coding] projects. I’m really just inter-
ested in deep grouper spots. I mean, I'll listen to what
you’ve got, though. We have a deal?” Griggs and
Smith exchanged more texts about the type of
grouper spots that Smith wanted, and Griggs retired
from the exchange for dinner.
The next day, communications broke down,
apparently because Griggs did not provide Smith with
deep grouper coordinates. And because he did not re-
ceive the deep grouper numbers, Smith told Griggs
that the “[p]osts are going back up.” Griggs attempted
to contact Smith again, but after it became clear that
Smith would not cooperate, Griggs and Harper con-
tacted law enforcement.
Id. at 1239–40 (alterations in original).
At trial, Smith moved for a judgment of acquittal on the ex-
tortion count based on the insufficiency of the evidence to establish
that he intended to extort money or something of value. The dis-
trict court denied the motion and instructed the jury that the gov-
ernment must prove beyond a reasonable doubt that:
(1) the Defendant knowingly sent a message in inter-
state or foreign commerce containing a true threat to
damage the property or reputation of another or used
a facility of interstate or foreign commerce to send
said threat; and
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23-12991 Opinion of the Court 5
(2) the Defendant did so with the intent to extort
money or something else of value to the Defendant.
Smith made no substantive objection to the instructions. The jury
returned a verdict of guilty on the extortion and theft-of-trade-se-
crets counts.
Smith appealed and argued that insufficient evidence sup-
ported his conviction for extortion because none of his communi-
cations threatened action to damage StrikeLines’s property or rep-
utation. We disagreed because, after Griggs told Smith that his Fa-
cebook posts about possessing StrikeLines’s coordinates were
harming the reputation of the business and the owners’ livelihoods,
Smith agreed to take the posts down in exchange for deep grouper
numbers, and when Griggs did not deliver those numbers within a
day, Smith said that the “deal [was] off” and the “[p]osts [were] go-
ing back up” because Griggs “didn’t follow through.” See id. at
1245. We vacated Smith’s conviction for theft of trade secrets for
improper venue without prejudice to the authority of the govern-
ment to prosecute Smith in a proper venue, and we remanded “to
the district court for resentencing only on [the extortion count].”
Id. at 1246.
After we issued our mandate, Smith petitioned for a writ of
certiorari on the issue whether vacatur for lack of venue bars retrial
of a defendant in the proper venue. The Supreme Court affirmed.
It held that Smith could be retried for theft of trade secrets in the
proper venue. Smith, 599 U.S. at 239, 254.
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6 Opinion of the Court 23-12991
On remand for resentencing, Smith again challenged his
conviction for extortion. He argued that the district court should
vacate his conviction in the light of Counterman because the jury
instructions omitted a mens rea element of the offense, namely “a
showing of [Smith’s] subjective awareness that his statements con-
stituted a true threat.” He argued that under Counterman the jury
could convict him only if it found that he at least “was reckless as
to whether his statement would be perceived as a true threat.”
The district court ruled that the mandate rule barred Smith’s
challenge to his conviction for extortion and that Counterman did
not apply to the extortion statute, 18 U.S.C. § 875(d). The district
court sentenced Smith to four months of imprisonment followed
by one year of supervised release, the first four months of which
must be served under home detention.
II. STANDARD OF REVIEW
We review de novo whether the law-of-the-case doctrine
barred Smith from relitigating his conviction for extortion. See
United States v. Green, 764 F.3d 1352, 1355 (11th Cir. 2014).
III. DISCUSSION
Smith argues that we must vacate his only remaining con-
viction because the jury instructions were plainly erroneous in the
light of Counterman. He argues that under Counterman the govern-
ment failed to prove “any awareness on [Smith’s] part that [his]
statements could be understood” as true threats. And he argues
that our mandate rule did not prohibit the district court from
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23-12991 Opinion of the Court 7
considering this argument because Counterman is an intervening
change in controlling law. We disagree.
The mandate rule is a case-specific application of the law-of-
the-case doctrine. United States v. Amedeo, 487 F.3d 823, 830 (11th
Cir. 2007). The doctrine “operates to create efficiency, finality, and
obedience within the judicial system.” Id. (alteration adopted).
When a district court acts under a mandate from an appellate
court, it “cannot vary it, or examine it for any other purpose than
execution; or give any other or further relief; or review it, even for
apparent error, upon a matter decided on appeal.” United States v.
Tamayo, 80 F.3d 1514, 1520 (11th Cir. 1996). Indeed, ruling on mat-
ters beyond the scope of a limited mandate is an abuse of discre-
tion. Id.
The exceptions to the mandate rule require new evidence,
an intervening change in controlling law, or a clearly erroneous de-
cision that would cause manifest injustice. United States v. Esco-
bar-Urrego, 110 F.3d 1556, 1561 (11th Cir. 1997). Smith contends
that Counterman qualifies as an intervening change in controlling
law. But “[n]ot just any change in law qualifies as an exception to
the law of the case doctrine.” United States v. Stein, 964 F.3d 1313,
1325 (11th Cir. 2020). Instead, we “demand an intervening change
in the controlling law that dictates a different result.” See id. (quo-
tation marks omitted) (rejecting the defendant’s argument on ap-
peal from resentencing that Honeycutt v. United States, 581 U.S. 443
(2017), was an intervening change in controlling law that qualified
as an exception to the mandate rule where that decision considered
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8 Opinion of the Court 23-12991
the text of a statute that lacked the statutory features at issue in the
defendant’s appeal).
In Counterman, the Supreme Court reviewed a state statute,
COLO. REV. STAT. § 18-3-602(1)(c) (2022), that prohibited making
any form of communication “in a manner that would cause a rea-
sonable person to suffer serious emotional distress and does cause
that person . . . to suffer serious emotional distress” but did not re-
quire “any kind of subjective intent to threaten.” 600 U.S. at 71
(quotation marks omitted). The Court ruled that the statute vio-
lated the First Amendment because, without proof of a defendant’s
subjective intent, prosecutions might “chill too much protected,
non-threatening expression.” Id. at 77–78, 82. It held that for “[t]rue
threats of violence” the State must prove that the defendant was
aware of the threatening nature of the statement with a mens rea of
at least recklessness, that is, that he “consciously disregarded a sub-
stantial risk that his communications would be viewed as threaten-
ing violence.” Id. at 69, 72–73.
The district court did not err in ruling that Smith’s challenge
to his conviction for extortion was barred by the mandate rule. In
our earlier decision, we ruled that sufficient evidence supported the
conviction. Smith, 22 F.4th at 1245. We remanded “to the district
court for resentencing only on [the extortion count].” Id. at 1246.
The district court correctly refused to assert jurisdiction “over mat-
ters outside the scope of [our] limited mandate” in rejecting Smith’s
second challenge to his conviction. Tamayo, 80 F.3d at 1520.
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23-12991 Opinion of the Court 9
Counterman does not dictate a different result. See Stein, 964
F.3d at 1325. No jury could have found that Smith made his com-
munications with the purpose of extorting a thing of value from
StrikeLines without necessarily finding that Smith was at least reck-
less as to whether the owners reasonably would view his state-
ments as a threat. Indeed, Smith could not have acted with the pur-
pose of extorting grouper numbers from Griggs without subjec-
tively believing that Griggs would understand that he and Harper
must provide the grouper numbers to Smith to prevent further
harm to the reputation of their business and livelihood. Because
Smith’s liability for extortion turned on a finding that he acted with
more than the mens rea of recklessness that Counterman requires in
true-threats cases, Counterman is not an intervening change in law
that dictates a different result. See 600 U.S. at 69, 72–73; Stein, 964
F.3d at 1325.
IV. CONCLUSION
We AFFIRM Smith’s sentence and DENY AS MOOT his
motion to withdraw his earlier motion for release pending appeal.