Petition for a Writ of Certiorari — Mendez v. United States (No. 08-142)

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08-142 anes - 2008

bie OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

JILDARDO MENDEZ,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

DAvibD OSCAR MARKUS

DAVID OSCAR MARKUS PLLC

COUNSEL OF RECORD FOR PETITIONER

169 E. FLAGLER STREET, STE. 1200

MIAMI, FLORIDA 33131

TELEPHONE (305) 379-6667

QUESTION PRESENTED FOR REVIEW

Whether the attempt to obtain a Florida commercial

driver’s license, without more, can be found to have

“affected interstate commerce" thus constituting a

federal crime.

INTERESTED PARTIES

There are no interested parties other than those

listed in the caption of this case.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ....... 1

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NEES Fa ee nid vk 94s a Fee Ee 1

Ree TRE APe PRE. ks ode Ce ca tenn egeeeewes 1

STATEMENT OF JURISDICTION ............. 1

STATUTORY PROVISION INVOLVED ......... 2

STATEMENT OF THE CASE ........ceeceeeue 3

REASONS FOR GRANTING THE WRIT ....... 13

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APPENDIX

Decision of the Court of Appeals for

the Eleventh Circuit,

United States v. Mendez,

§28'F.3d 811 (11th Cir. 2008) ............. App. 1

Judgment Imposing Sentence............ App. 13

District Court Order finding Mendez guilty App. 19

lil

TABLE OF AUTHORITIES

Page

CASES:

United States v. Corona

108 F.3d 565 (5th Cir. 1997) ............ 16

United States v. Denalli

73 F.3d 326 CViith Cir. 1996) ........005. 15

United States v. Gros

824 F.2d 1487 (6th Cir. 1995) ........... 15

United States v. Jackson

155 F.3a 942 Gth Cir. 1998) ............ 15

United States v. Klopf

423 F.3d 1228 (11th Cir. 2005) ....... 10-12

United States v. Lopez

ESR | re 14-16

United States v. McGuire

178 F.3d 208 (3rd Cir. 1999) ......... 15-16

United States v. Mendez

628 F.3d 811 (llth Cir. 2008) ............ 1

United States v. Morrison

ee ae nn ko vee Kc uw dcckess 14

iV

United States v. Pearce

65 F.3a 92 (4th Cir. 1995) ...........054 15

United States v. Villarreal

253 F.3d 831 (Sth Cir. 2001) ............ 15

STATUTORY AND OTHER AUTHORITY:

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PETITION FOR WRIT OF CERTIORARI

Jildardo Mendez respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Eleventh Circuit in

United States v. Jildardo Mendez, 528 F.3d 811 (llth

Cir. 2008).

OPINION BELOW

A copy of the decision of the United States Court

of Appeals for the Eleventh Circuit, which affirmed the

judgment of the United States District Court for the

Southern District of Florida, is contained in the

Appendix (App. 1). Also included in the appendix is

the district court’s order finding Mr. Mendez guilty of

both counts. (App. 19).

STATEMENT OF JURISDICTION

Jurisdiction of this Court is invoked under 28

U.S.C. § 12540) and Part III of the RULES OF THE

SUPREME COURT OFTHE UNITED STATES. This petition

is timely filed pursuant to Sup. CT. R. 13.1 and 13.3.

STATUTORY PROVISION INVOLVED

Petitioner intends to rely upon the following

constitutional provisions, treaties, statutes, rules,

ordinances and regulations:

18 U.S.C. § 1028(a)(1) and (c)(3)(A)

Whoever ... knowingly and without lawful

authority produces an _ identification document,

authentication feature, or a false identification

document; ... [which] production is in or affects

interstate or foreign commerce lis guilty of this

offense].

STATEMENT OF THE CASE

A. INTRODUCTION

It is among the most basic principles of federal

criminal law: Before an individual may be convicted of

a federal crime, the Government must prove some

nexus to the federal government. Some statutes, lke

18 U.S.C. § 371, have an intent element involving the

United States: “conspiracy to defraud the United

States.” Others, hke 18 U.S.C. § 1028(a)(1), require

that the crime have “an effect on interstate commerce.”

Mr. Mendez was charged with violating both of

these statutes. Although the parties agreed that

Mendez fraudulently acquired a Florida commercial

driver’s license (““CDL”) from a Florida driver’s license

bureau, they disagreed as to whether doing so was a

federal crime. At a bench trial, Mendez argued that he

only intended to defraud the State of Florida, not the

United States, and that his actions did not have an

effect on interstate commerce. The trial court found

that because the U.S. government had minimum

requirements regarding states issuing CDLs, Mr.

Mendez did have the requisite intent to defraud the

United States, even though he had no idea that the

federal government had anything to do with CDLs.

And the trial judge found that Mendez’s actions

affected interstate commerce because he drove home

from the driver’s license bureau on publicly funded

roads in a car that must have been manufactured

outside of Florida.

The Eleventh Circuit rejected this reasoning and

reversed Count I. But even though the court also

rejected the district court’s reasoning on Count II, it

affirmed the finding that Mendez must have intended

at some future time to use his commercial driver’s

license in a way that affected interstate commerce.

The lower court’s logic would turn literally every

crime into a federal offense. ‘I'he crime in this case —

the attempted production of a commercial driver’s

hcense — had no effect on interstate commerce.

Mendez’s conviction therefore must be reversed.

B. THE CHARGES AGAINST Mr. MENDEZ

‘The Government initially charged Mendez with

a violation of 18 U.S.C. § 1028(a)(4) — knowingly “

possessing an identification document, other than one

issued lawfully for the use of the possessor, that is, a

Florida commercial driver's license, for the purpose of

defrauding the United States. DE 11. The defense

filed a motion for a bill of particulars, seeking

“information as to how Mr. Mendez intended to defraud

the United States.” DE 15:2.

In response, the Government superceded the

indictment with a different section under 1028 that did

not require intent to defraud the United States. DE 24.

The Government, in the superceding indictment,

charged that the defendant knowingly and without

lawful authority caused an identification document to

be produced, to wit, a Florida commercial driver’s

license, in and affecting interstate commerce, in

violation of 18 U.S.C. § 1028(a)(1) & (c)(3)(A), and 2.

4

The jurisdictional hook in this section, as opposed to

1028(a)(4) which required intent to defraud the United

States, was that the production of the identification

affected interstate commerce. The Government also

added an additional charge of conspiracy to defraud the

United States, in violation of 18 U.S.C. § 371. DE 24.

Based on this additional charge, Mendez filed

another motion for bill of particulars, again requesting

information regarding how Mendez conspired to

defraud the United States (as opposed to the State of

Florida). DE 25. The Government responded that

because Mendez “circumventled] the federally

mandated minimum standards... for issuance of a

CDL,” DE 30:3, he must have intended to defraud the

United States and therefore the motion should be

denied. The court denied the motion, stating that the

Government had “provideld] more than enough

information to allow the Defendant to prepare an

effective trial strategy. .. . It appears that what the

Defendant seeks is a dismissal of the charges, that

effort is premature.” DE 32.

Shortly before trial, the Government superceded

a second time, again amending the 1028 count. DE 37.

The final incantation of the indictment was as follows:

Count I: “Jildardo Mendez did knowingly and

willfully combine, conspire, confederate,

and agree with others to defraud the

United States,” in violation of 18 U.S.C. §

371.

Count IT: “Jildardo Mendez knowingly, willfully,

5

and without lawful authority caused, and

attempted to cause, an identification

document to be produced, to wit, a

Florida commercial driver’s license, in

and affecting interstate commerce, in

violation of 18 U.S.C. § 1028(a)(1),

(c)(3)(A), and (f), and 18 U.S.C. § 2.”

DE 37.

[. THE STIPULATED FACTS

The parties agreed to waive a jury trial, and

proceeded to try the case to the court. DE 41. The

parties also agreed to a set of stipulated facts and

entered into a stipulation, which was signed by the

Government, Mr. Mendez, and undersigned counsel.

DE 42. The Eleventh Circuit summarized those facts

as follows:

Mendez and the government stipulated to

the following facts. On February 14, 2007, an

anonymous caller provided information to

officers of the Florida Highway Patrol regarding

fraudulently obtained CDLs. The caller

explained that Steven Baez, a member of the

Florida Army National Guard, was selling

DA-348E forms for approximately $1,200 to

$2,000. The DA-348E form is a Department of

Army “Operator Qualification Record” that sets

forth the fitness, training and equipment

qualifications of its personnel who have

qualified to operate commercial motor vehicles.

The form is.one way by which an individual may

demonstrate his compliance with the Florida

6

CDL requirements and thereby waive the

completion of the requisite Florida CDL testing.

The caller further explained that Baez had been

providing these forms to non-military personnel

and escorting them to the Homestead, Florida

Department of Motor Vehicles (“DMV”) to obtain

CDLs.

A law’ enforcement investigation

concerning Baez revealed that approximately

186 DA-348E forms had been fraudulently

submitted at the Homestead DMV licensing

branch. The investigation also determined that

Mendez obtained a Class A CDL on September

14, 2006 using a fraudulent DA-348E form of

the same type as those that Baez sold. Officers

arrested Mendez on April 9, 2007, and Mendez

waived his Miranda rights in writing.

During a post-arrest interview, Mendez

stated that he had spoken via telephone to a

man named Steven about obtaining a CDL

because he thought his problems reading and

writing English would prevent him from

otherwise obtaining a CDL. Pursuant to Baez's

instructions, Mendez met Baez outside the

Homestead DMV on September 14 with $1,000

cash. In exchange for the money, Baez gave

Mendez a form that Baez had filled out with

Mendez's personal information, which Mendez

had communicated to Baez during their phone

conversation. Mendez then used the form to

obtain a Florida CDL, which costs $50 and

requires forfeiture of all other driver licenses.

7

Although Mendez recognized that Baez

was wearing a United States military uniform

when they met, Mendez did not know the

purpose of the DA-348E form or that it was a

Department of Army form. Mendez did know,

however, that an acquaintance had illegally

obtained a CDL using a military form purchased

from Baez.

The stipulation further provided that in

traveling to the Homestead DMV, Mendez drove

a motor vehicle, not a Class A vehicle, on public

highways and roads. Mendez never bought or

drove any Class A vehicle. Finally, the

stipulation declared that using a driver's license

involves operating a motor vehicle, which

requires the purchase and consumption of

gasoline that travels in interstate and foreign

commerce.

D. THE BENCH TRIAL

Other than the stipulation, no other facts were

admitted in evidence. Accordingly, both sides made

legal argument to the court. As for conspiracy to

defraud the United States, the Government argued

that because the federal government had an interest in

state-issued CDLs, Mendez must have intended to

defraud the United States. DE 60:32 (“(AlJlthough

[Mendez’s] primary intention may have been to

defraud the state, Your Honor, whether the defendant

wants to acknowledge it or not, he clearly defrauded

the federal government.”). On Count II, the United

8

States argued that because Mendez drove on public

roads, his actions affected interstate commerce. DE

60:36 (“[Tlhe use of a commercial driver’s license

involves the inherent use of a vehicle on a public road.

... [Hle had to use gas. Gas is produced and travels in

interstate and foreign commerce.”).

The defense argued that there was insufficient

proof on both counts. Regarding the intent to defraud

the United States, the defense said that even assuming

the Government actually proved that the federal

government was defrauded, “what the Government has

failed to prove is that Mr. Mendez knowingly and

intentionally defrauded the United States.” DE 60:37.

As for driving on public roads and using gasoline as a

basis to prove an cffect on interstate commerce, the

defense responded that such an argument, if accepted,

would federalize every crime. DE 60:21. At the

conclusion of the argument, the court recessed and

stated that it would issue its ruling the following week.

=. THE VERDICT AND SENTENCING

The court issued a four-page order finding

Mendez guilty of both counts. (App. 19). As to

defrauding the United States (count I), the court found:

Mendez intended to use a fraudulent document

to obtain a commercial drivers’ license that he

felt he would not otherwise be able to obtain.

He was willing to pay $1,000 to accomplish this

goal. Congress has heavily regulated the

method of obtaining commercial drivers’

licenses. By fraudulently obtaining the license,

9

Mendez was intending to defraud the issuing

agencies, in this case both the State of Florida,

who issued the license, and the U.S. Dept. of

Transportation, who promulgated the minimum

rules and regulations for obtaining such a

license. Consequently, the Court finds, beyonda

reasonable doubt, that Mendez intended to

defraud both the State of Florida and the federal

government (and any one else who might have

a say in his obtaining the license).

There was no evidence presented to the court,

however, that Mendez knew that the U.S. Dept.

of Transportation (“DoT”) promulgated the

minimum rules and regulations for obtaining

such a license, or that the DoT was defrauded,

or that Mendez intended to defraud the DoT.

The court, however, found that if the DoT

promulgated rules for states to issue CDLs, then

Mendez must have known that and must have

intended to defraud that federal agency. Sucha

leap was not supported by the evidence or by

any logical inference.

And as to whether Mendez’s actions affected

interstate commerce, the court found:

The Government need only prove a minimal

nexus with interstate commerce in a §1028(a)

prosecution. U.S. v. Klopf, 423 F.3d 1228, 1239

(11th Cir. 2005). Mendez drove home from

Homestead with the commercial! drivers license

on September 14, 2066. He drove to Coral Reef

on April 9, 2007 with that hcense. He lives at

10

36609 S.W. 217 Avenue, in Florida City and

owns Guilbert’s nursery. The Court concludes

that he drove vehicles for both business and

pleasure during the six months that he

possessed the fraudulently obtained commercial

drivers license. The car that he drove would

have been manufactured outside the state of

Florida. The gasoline that he put in the car was

refined outside the State of Florida. He drove on

roads that were partially supported by federal

funds. The court finds, beyond a reasonable

doubt, that Mendez’s crime had an effect on

interstate commerce.

The court sentenced Mr. Mendez to one year

probation, 50 community service hours, and a $200

special assessment. (App. 13). Mendez timely appealed.

DE 50.

F. THE ELEVENTH CIRCUIT OPINION

On May 21, 2008, the Eleventh Circuit reversed

Mendez’s conviction on Count Il, and affirmed on Count

II. It rejected the district court’s reasoning on Count

II, but found:

To satisfy the interstate commerce

requirement ... the government need only show

a minimal nexus. Klopf, 423 F.3d at 1239. The

government may prove the requisite minimal

nexus by showing either that the defendant's

actions actually affected interstate commerce,

see 18 U.S.C. § 1028(c)(3)(A), or by showing that

the defendant “had the intent to accomplish

11

acts, which, if successful, would have affected

interstate or foreign commerce.” Klopf, 423 F.3d

at 1239.

The district court found Mendez guilty

based on the crime's actual affect on interstate

commerce. We need not decide that issue,

however, because we hold that the district court

could have found beyond a reasonable doubt

that Mendez intended to accomplish acts that

would have affected interstate commerce if they

had been successful. Specifically, the stipulated

facts show that Mendez paid $1000 to

fraudulently obtain the CDL. That alone is

sufficient evidence that Mendez intended to use

the CDL in a manner that would have affected

interstate commerce. Mendez clearly intended to

operate a commercial vehicle, and operating a

commercial vehicle illegally, even if the vehicle

never leaves Florida, sufficiently affects

interstate commerce to satisfy the minimal

nexus requirement. Accordingly, under Klopf,

we must affirm Mendez's conviction of Count 2.

REASONS FOR GRANTING THE WRIT

This Court should define the outer limits

of the federal government’s reach under

the commerce clause.

The Circuit’s Court’s reasoning — that the

government need not show an actual effect on

interstate commerce, just the possibility of an effect —

is far more expansive than any prior authority. In fact,

such a decision threatens to open federal jurisdiction

up to just about every local crime. Such an expansive

view of the commerce clause is not appropriate. This

case demonstrates exactly why — Mr. Mendez

attempted to obtain a Florida commercial driver’s

license in Florida at a Florida driver’s license bureau.

He never used the commercial driver’s license to buy or

drive a commercial vehicle. During the many months

he possessed the license, he never did anything that

affected interstate commerce.

The district court convicted Mendez on the

premise that he drove to and from the Florida motor

vehicles department on a federal highway. The

appellate court rejected this reasoning, but nonetheless

ruled that Mendez must have intended to use the

commercial driver’s license one day in a way that

would affect interstate commerce. But none of the

stipulated facts supported such a conclusion. And even

if they did, the statute, 18 U.S.C. 1028(a), requires an

actual effect be shown, not a hypothetical effect.

This is the ideal case for certiorar}:

13

The case presents a clear question of law. The

issue here — how far the commerce clause

reaches in cases where it is a statutory element

— is a pure question of law. If lower courts are

permitted to find a federal nexus based on mere

hypotheticals, federal jurisdiction will be

conferred on almost all local crime. Although

this Court has addressed the reach of the

commerce clause in cases where it was not a

stated element (e.g., United States v. Lopez, 514

U.S. 549 (1995); United States v. Morrison, 529

U.S. 598 (2000)), the Court has not done so ina

case like this.

It is important. The question presented in this

case is important because the volume of

prosecutions under 1028(a) and similar statutes

have greatly increased in recent years. These

crimes have traditionally been prosecuted by

local government, not the federal government.

The Court should explain the outer contours of

the commerce clause so that federal prosecutors

have a better idea of what cases can be

prosecuted under federal authority.

It is ready for resolution. There is no benefit to

waiting to hear a similar case. The competing

legal positions and consequences are clearly

defined and ready for resolution.

The Eleventh Circuit decision is more

expansive than its prior decisions, more

expansive than any other Circuit decision to

14

a

~:

a,

Ee,

have considered the issue, and more expansive

than this Court’s decisions. United States v.

Denalli, 73 F.3d 328 (11th Cir. 1996) (holding

that there are effects on commerce so trivial or

attenuated that they cannot satisfy interstate

commerce element); See United States v.

Pearce, 65 F.3d 22, 25 (4th Cir. 1995) (fake IDs

and manufacturing machines actually traveled

in interstate commerce); United States v. Gros,

824 F.2d 1487, 1494-95 (6th Cir. 1995)

(approving instruction that permitted a finding

that the defendant’s actions affected interstate

commerce where she induced United States to

produce false ID that traveled across state

lines); United States v. Jackson, 155 F.3d 942

(8th Cir. 1998) (defendant induced a bank to

issue a credit card with a fake driver’s license

which were used to defraud businesses); United

States v. Villarreal, 253 F.3d 831 (5 Cir. 2001)

(defendant offered undercover agent a false

driver’s license to cross Mexican border into the

Unites States sc that person could stay and

work in the United States). United States v.

Lopez, 514 U.S. 549, 557 (1995) (warning that

“in our dual system of government” and “our

complex society” courts should not “obliterate

the distinction between what is national and

what is local and create a completely centralized

government’) (internal quotations omitted).

In addition, no case has ever found mere

speculation sufficient to satisfy the interstate

commerce element. Similar attempts to

federalize all crimes have failed. See United

15

States v. McGuire, 178 F.3d 203, 210, 212 (3d

Cir. 1999) Gnterstate nexus too attenuated to

confer jurisdiction over federal arson

prosecution stemming from destruction of car,

where car used in local catering business

contained bottle of orange juice manufactured

out-of-state); United States v. Corona, 108 F.3d

565 (5th Cir. 1997) (“[Wle doubt that an effect as

small as the cessation of natural gas service to

a single household satisfies the constitutional

requirement.”). The McGuire court explained

that the federalization of crime under the

commerce clause is “subject to outer limits,”

stating:

As we conduct our analysis we are

mindful that, “in view of our complex

society,” there is virtually nothing that

does not affect interstate commerce in

some manner. Lopez, 514 U.S. at 555.

Though certain conduct may appear to be

the quintessence of local activity, if we

“follow the money” the trail we will

always disclose some effect on interstate

and/or foreign commerce. For example,

though the effect is highly attenuated,

driving a few blocks to pick up one's

children (consumption of gasoline refined

from foreign oil, and wear and tear on

vehicle manufactured in another state or

country) or eating dinner in front of one's

own television set (consuming food and

beverages from outside of state or

country, as well as decisions on how to

16

spend hundreds of millions of advertising

dollars), have an indirect effect on

interstate, and often foreign commerce.

Even such a seemingly parochial action

as borrowing a cup of sugar from a

neighbor can be viewed as part of the

stream of commerce that extends to

refineries overseas.

This case is a good vehicle for Supreme Court

review. The issue is preserved. The issue is

uncluttered and is cleanly presented for this

Court’s review. The case is outcome

determinative — resolving this issue will

determine who wins the case. The judgment is

final and no further proceedings will shed hght

on the question. The case has a well-developed

record and there are no factual disputes as the

parties stipulated to the facts.

CONCLUSION

Based upon the foregoing petition, the Court

should grant a writ of certiorari to the Court of Appeals

for the Eleventh Circuit.

Miami, Florida Respectfully submitted,

August 2008

Davip OSCAR MARKUS

DAVID OSCAR MARKUS, PLLC

Counsel of Record for Petitioner

169 E. Flagler Street, Ste. 1200

Miami, Florida 33131

Telephone (305) 379-6667

Facsimile (305)379-6668

18

App. 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 07-13443

D.C. Docket No. 07-20331-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JILDARDO MENDEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Florida

(May 21, 2008)

Before WILSON, COX and BOWMAN,’ Circuit

Judges.

PER CURIAM:

Jildardo Mendez appeals his convictions for

conspiracy to defraud the United States, in violation

of 18 U.S.C. § 371 (Count 1), and unlawful production

* Honurable Pasco M. Bowman II, United States Circuit

Judge for the Eight Circuit, sitting by designation.

App. 2

of a Florida commercial driver’s license (“CDL”), in

violation of 18 U.S.C. § 1028(a)(1), (c)(3)A), and (f,

and 18 U.S.C. §2 (Count 2). On appeal, Mendez

argues that the record does not contain sufficient

evidence of either (1) the requisite intent to defraud

the United States under § 371, or (2) the requisite

interstate commerce nexus under § 1028(a)(1) and

(c(3)(A). For the reasons set forth below, we reverse

the conviction of Count 1 and affirm the conviction of

Count 2.

I. BACKGROUND

Mendez and the government stipulated to the

following facts. On February 14, 2007, an anonymous

caller proviced information to officers of the Florida

Highway Patrol regarding fraudulently obtained

CDLs. The caller explained that Steven Baez, a

member of the Florida Army National Guard, was

selling DA-348E forms for approximately $1,200 to

$2,000. The DA-348E form is a Department of Army

“Operator Qualification Record” that sets forth the

fitness, training and equipment qualifications of its

personnel who have qualified to operate commercial

motor vehicles. The form is one way by which an

individual may demonstrate his compliance with the

Florida CDL requirements and thereby waive the

completion of the requisite Florida CDL testing. The

caller further explained that Baez had been providing

these forms to non-military personnel] and escorting

them to the Homestead, Florida Department of Motor

Vehicles (“DMV”) to obtain CDLs.

App. 3

A law enforcement investigation concerning Baez

revealed that approximately 186 DA-348E forms had

been fraudulently submitted at the Homestead DMV

licensing branch. The investigation also determined

that Mendez obtained a Class A CDL on September

14, 2006 using a fraudulent DA-348E form of the

same type as those that Baez sold. Officers arrested

Mendez on April 9, 2007, and Mendez waived his

Miranda rights in writing.

During a post-arrest interview, Mendez stated

that he had spoken via telephone to a man named

Steven about obtaining a CDL because he thought his

problems reading and writing English would prevent

him from otherwise obtaining a CDL. Pursuant to

Baez's instructions, Mendez met Baez outside the

Homestead DMV on September 14 with $1,000 cash.

In exchange for the money, Baez gave Mendez a form

that Baez had filled out with Mendez’s personal

information, which Mendez had communicated to

Baez during their phone conversation. Mendez then

used the form to obtain a Florida CDL, which costs

$50 and requires forfeiture of all other driver li-

censes.

Although Mendez recognized that Baez was

wearing a United States military uniform when they

met, Mendez did not know the purpose of the DA-

348E form or that it was a Department of Army form.

Mendez did know, however, that an acquaintance had

illegally obtained a CDL using a military form pur-

chased from Baez.

App. 4

The stipulation further provided that in traveling

to the Homestead DMV, Mendez drove a motor vehi-

cle, not a Class A vehicle, on public highways and

roads. Mendez never bought or drove any Class A

vehicle. Finally, the stipulation declared that using a

driver’s license involves operating a motor vehicle,

which requires the purchase and consumption of

gasoline that travels in interstate and foreign com-

merce.

A federal grand jury indicted Mendez, and later

superceded that indictment charging him with (1)

conspiracy to defraud the United States, in violation

of 18 U.S.C. § 371, and (2) unlawful production, and

attempted unlawful production, of a Florida CDL, in

violation of 18 U.S.C. § 1028(a)(1), (c)(3)(A), and (f),

and 18 U.S.C. §2. Mendez pled not guilty to both

counts, and later waived his right to a jury trial. The

district court did not hear any testimony and adopted

the stipulated facts as true, but it did hear argument

from counsel on the legal issues. It found Mendez

guilty of both counts.

Il. STANDARD OF REVIEW

We review the sufficiency of the evidence de novo,

viewing the evidence in the light most favorable to

the government and accepting all reasonable infer-

ences in favor of the verdict. United States v. Klopf,

423 F.3d 1228, 1236 (11th Cir. 2005). When the gov-

ernment relies on circumstantial evidence, reasonable

App. 5

inferences, not mere speculation, must support the

conviction. Jd.

Iii. DISCUSSION

A. Intent to Defraud the United States

Mendez first argues that we must reverse his

§ 371 conviction because the record does not support

the district court’s finding that he intended to defraud

the U.S. Department of Transportation (“DOT”). He

concedes that he defrauded the Florida DMV, but he

asserts that there is no evidence that he even knew of

any connection between a Florida CDL and the

federal government.

Under 18 U.S.C. § 371, it is a crime to “conspire

either to commit any offense against the United

States, or to defraud the United States, or any agency

thereof in any manner of for any purpose... .” The

proof required to support a § 371 conviction is differ-

ent, however, depending on whether the defendant is

charged with conspiracy to commit any offense

against the United States or conspiracy to defraud

the United States. In United States v. Harmas, 974

F.2d 1262 (11th Cir. 1992), we explained that under

the “defraud” clause of § 371, which is at issue here,

“the government must prove that the United States

was the ultimate target of the conspiracy,” whereas

under 3371's “any offense” clause, the government is

not required to ailege that the United States was the

intended victim of the conspiracy. Jd. at 1268. In so

holding, we adhered to the Supreme Court’s declaration

App. 6

in Tanner v. United States, 483 U.S. 107, 107 S. Ct.

2739, 97 L. Ed. 2d 90 (1987), that “[t]he conspiracies

criminalized by [the defraud clause of] § 371 are

defined ... most importantly ... by the target of the

conspiracy.” Jd. at 130, 107 S. Ct. at 2752.

It is clear that under Tanner, we must reverse

Mendez’s § 371 conviction. The Tanner defendants

conspired to defraud Seminole Electric Cooperative,

Inc., a private company. In order to complete a con-

struction project, Seminole obtained a bank loan that

was guaranteed by the federal Rural Electrification

Administration (“REA”). Jd. at 110, 107 S. Ct. at

2742. The defendants’ § 371 conviction was based on .

their interference with the REA’s operation of its

guaranteed loan program. /d. at 128-29, 107 S. Ct. at

2752. The defendants argued that a conspiracy to

defraud a private corporation that received financial

assistance from the federal government does not

constitute a conspiracy to defraud the United States.

Id. at 129, 107 S. Ct. at 2752.

In response, the government argued that a

conspiracy to defraud the United States under § 371

may be effected by the use of third parties and that

Seminole may itself be treated as “the United States”

for purposes of §371 because it received federal

financial assistance and supervision. Jd. The Tanner

Court rejected the government’s argument, reasoning

that a conspiracy to defraud a third party is not itself

a conspiracy to defraud the United States simply

because the third party receives financial assistance

from and is supervised by the United States. Id. at

et

App. 7

130-32, 107 S. Ct. at 2752-54. The Court then held

that the defendants’ convictions could only stand if

the evidence was sufficient to establish that they

conspired to cause Seminole to make misrepresenta-

tions to the REA. /d. at 132, 107 S. Ct. at 2754.

Here, the district court found that by fraudu-

lently obtaining the CDL, Mendez intended to de-

fraud both the State of Florida, which issued the

CDL, and the DOT, which promulgated the minimum

rules and regulations for obtaining a CDL. The dis-

trict court thus concluded that, beyond a reasonable

doubt, Mendez had the requisite intent to defraud the

United States under § 371.

We disagree. Mendez’s § 371 conviction is pre-

cisely what the Tanner Court meant to prevent. The

facts to which the parties stipulated do not show that

Mendez even knew the federal government was in

involved in the issuance of Florida CDLs, let alone

that the United States was the ultimate intended

target of Mendez’s conduct. Accordingly, under Tan-

ner, there was no basis for the district court to find

that Mendez was guilty beyond a reasonable doubt of

defrauding the United States under 18 U.S.C. § 371.

The government argues that Mendez’s payment

for and use of the DA-348E form to obtain the CDL

was enough to satisfy § 371’s intent requirement.’ In

* The government also asserts that Mendez defrauded the

United States Army. Mendez correctly recognizes, however, that

this theory was neither in the indictment or presented at trial.

(Continued on following page)

App. 8

support of its argument, the government points to the

first sentence of the introduction section in the Flor-

ida CDL handbook, which describes the “federal

requirement that each state have minimum s(‘an-

dards for the licensing of commercial drivers.” Addi-

tionally, the government cites the Florida DMV

website, which advises CDL applicants of federal

guidelines. Given those facts, the government con-

tends, it is reasonable to infer that Mendez knew of

the federal involvement in the issuance of Florida

CDLs.

Those facts, however, were not included in the

trial stipulation, and therefore are not part of the

record. Even if we were to accept such facts as cir-

cumstantial evidence, they would not be strong

enough to support Mendez’s § 371 conviction because

the stipulation indicates that Mendez had difficulty

reading English. Accordingly, we conclude that it

would be mere speculation, rather than a reasonable

inference, to conclude that Mendez intended to de-

fraud the DOT based on the references to the federal

government in the CDL handbook and Florida DMV

website.

The Ninth Circuit faced similar facts and reached

a similar conclusion in United States v. Licciardi, 30

Accordingly, we may not affirm the conviction on this basis. See

United States v. Elkins, 885 F.2d 775, 782 (11th Cir. 1989) (“This

Court cannot affirm a criminal conviction based on a theory not

contained in the indictment, or not presented to the jury.”)

(citation omitted).

App. 9

F.3d 1127 (9th Cir. 1994). The defendant in Licciardi

was a grape broker who defrauded a wine producer

and was charged under the defraud clause of § 371

because of the regulatory involvement of a federal

agency, the Bureau of Alcohol, Tobacco, and Firearms

(“ATF”), in the wine industry. Jd. at 1128-29. The

Court held that the basis suggested in Tanner for

upholding a defendants’ § 371 conviction was lacking

because the government failed to show anything

beyond the defendants’ incidental impairment of ATF

functions.’ Jd. at 1132. “It might have been easy,” the

Court explained, “for the government to establish

that Licciardi was familiar with the federal regula-

tions on the labelling of wine and that it was a neces-

sary part of his plan of deceit that [the defrauded

wine producer] provide information to the govern-

ment that would frustrate these regulations,” but the

government did not do so. /d.

The government’s case is weaker here than it was

in Licciardi. Given the stipulated facts, it would

require much greater speculation for us to infer that

Mendez knew of the DOT’s involvement in the issu-

ance of Florida CDLs than the speculation that would

have been required for the Ninth Circuit to infer that

Licciardi, himself a grape broker, did not foresee the

effect of his fraudulent activity on the ATF.

* Licciardi’s conviction was affirmed on other grounds.

Licciardi, 30 F.3d at 1134-35.

App. 10

Finally, the government argues that knowledge

that the United States is to be defrauded is not a

necessary element of a § 371 offense. In support of its

argument, the government cites United States uv.

Sorrow, 732 F.2d 176, 177-79 (11th Cir. 1984), in

which we held that the defraud clause of § 371 does

not require proof of anti-federal intent. The govern-

ment also relied on Sorrow in Licciardi, but the

Ninth Circuit commented, “[i]t is doubtful that Sor-

row survives Tanner.” Licciardi, 30 F.3d at 1132. We

concede that Sorrow is superceded by the Supreme

Court’s holding in Tanner, and we hereby expressly

overrule Sorrow.”

B. Interstate Commerce Nexus

Mendez also argues that we must reverse his

§ 1028(a)(1) conviction because his crime did not

sufficiently affect interstate commerce. He contends

that if driving on public roads satisfies the minimal

interstate nexus requirement, all local crimes would

be federalized.

Under 18 U.S.C. § 1028(a)(1) and (c)(3)(A), it is a

crime to unlawfully produce an identification document

when the production “is in or affects interstate or

foreign commerce.” To satisfy the interstate commerce

* When a prior panel decision conflicts with a subsequent

Supreme Court decision, we must depart from the prior panel

precedent and follow the Supreme Court decision. Cottrell v.

Caldwell, 85 F.3d 1480, 1485 (11th Cir.1996).

App. 11

requirement, however, the government need only

show a minimal nexus. Klopf, 423 F.3d at 1239. The

government may prove the requisite minimal nexus

by showing either that the defendant’s actions actu-

ally affected interstate commerce, see 18 U.S.C.

§ 1028(c)(3)(A), or by showing that the defendant

“had the intent to accomplish acts, which, if success-

ful, would have affected interstate or foreign com-

merce.” Klopf, 423 F.3d at 1239.

The district court found Mendez guilty based on

the crime’s actual affect on interstate commerce. We

need not decide that issue, however, because we hold

that the district court could have found beyond a

reasonable doubt that Mendez intended to accomplish

acts that would have affected interstate commerce if

they had been successful. Specifically, the stipulated

facts show that Mendez paid $1000 to fraudulently

obtain the CDL. That alone is sufficient evidence that

Mendez intended to use the DL in a manner that

would have affected interstate commerce. Mendez

clearly intended to operate a commercial vehicle, and

operating a commercial vehicle illegally, even if the

vehicle never leaves Florida, sufficiently affects

interstate commerce to satisfy the minimal nexus

requirement. Accordingly, under Klopf, we must

affirm Mendez’s conviction of Count 2.

CONCLUSION

Because the United States was not the target of

Mendez’s crime, we reverse Mendez’s conviction

App. 12

under 18 U.S.C. § 371. We affirm Mendez’s conviction

under 18 U.S.C. § 1028(a)(1), however, because

Mendez’s intent in fraudulently obtaining the CDL

was clearly to illegally operate a commercial vehicle,

which would sufficiently affect interstate commerce.

AFFIRMED IN PART, REVERSED IN PART.

App. 13

United States District Court

Southern District of Florida

FT. LAUDERDALE DIVISION

UNITED STATES JUDGMENT INA

OF AMERICA CRIMINAL CASE

Vv. Case Number:

0:07CR20331-Dimitroul

JILDARDO USM Number: 78587.004

MENDEZ ss

Counsel for Defendant:

DAVID MARCUS

Counsel! for the United States:

LAURIE RUCOBA

Court Reporter: Robert Ryckoff

(Entered Jul. 11, 2007)

The defendant was found guilty on Count I and II of

the Second Superseding Indictment. The defendant

is adjudicated guilty of the following offense(s):

TITLE/

SECTION NATURE OF OFFENSE

NUMBER OFFENSE ENDED COUNT

18 U.S.C. §371 Conspiracy to 9/14/2006 I

defraud the

United States

18 U.S.C. Unlawful pro- 9/14/2006 II

§ 1028(aX1), duction of

(cX3XA), and (f) identification

documents

The defendant is sentenced as provided in the

following pages of this judgmer.-. The sentence is

imposed pursuant to the Sentencing Reform Act of

1984.

App. 14

It is ordered that the defendant must notify the

United States attorney for this district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs and special

assessments imposed by this judgment are fully

paid. If ordered to pay restitution, the defendant

must notify the court and United States attorney of

any meterial changes in economic circumstances.

Date of Imposition of Sentence:

7/10/2007

/s/William P. Dimitrouleas |

WILLIAM P. DIMITROULEAS

United States District Judge

July 10, 2007

PROBATION

The defendant is hereby sentenced to probation for

a term of ONE YEAR AS TO COUNTS I and II TO

RUN CONCURRENTLY WITH EACH OTHER.

The defendant shall not commit another federal,

state oc local crime.

The defendant shall not unlawfully possess a con-

trolled substance. The defendant shall refrain from

any unlawful use of a controlled substance. The

defendant shall submit to one drug test within 15

days o/ release from imprisonment and at least two

periodic drug tests thereafter, as determined by the

court.

The defendant shall not possess a fire-

arm, destructive device, or any other

dangerous weapon.

App. 15

If this judgment imposes a fine or a restitution

obligation, it is a condition of supervised release

that the defendant pay in accordance with the

Schedule of Payments sheet of this judgment.

The defendant must comply with the standard

conditions that have been adopted by this court as

well as any additional conditions on the attached

page.

STANDARD CONDITIONS OF SUPERVISION

1.

the defendant shall not leave the judicial district

without the permission of the court or probation

officer;

the defendant shall report to the probation officer

as directed by the court or probation officer and

shall submit a truthful and complete written re-

port within the first five days of each month;

the defendant shall answer truthfully all inquir-

ies by the probation officer and follow the in-

structions of the probation officer;

the defendant shall support his or her depend-

ents and meet other family responsibilities;

the defendant shall work regularly at a lawful

occupation unless excused by the probation offi-

cer for schooling, training, or other acceptable

reasons;

the defendant shall notify the probation officer at

least ten (10) days prior to any change in resi-

dence or employment;

10.

11.

12.

13.

App. 16

the defendant shall refrain from the excessive

“ase of alcohol and shall not purchase, possess,

use, distribute, or administer any controlled sub-

stance or any paraphernalia related to any con-

trolled substances, except as prescribed by a

physician;

the defendant shall not frequent places where

controlled substances are illegally sold, used, dis-

tributed, or administered;

the defendant shall not associate with any per-

sons engaged in criminal activity, and shall not

associate with any person convicted of a felony

unless granted permission to do so by the proba-

tion officer;

the defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view by the probation officer.

the defendant shall notify the probation officer

within seventy-two (72) hours of being arrested

or questioned by a law enforcement officer.

the defendant shall not enter into any agreement

to act as an informer or a special agent of a law

enforcement agency without the permission of

the court;

as directed by the probation officer, the defen-

dant shall notify third parties of risks that may

be occasioned by the defendant’s criminal record

or personal history or characteristics, and shall

permit the probation officer to make such notifi-

cations and to confirm the defendant’s compli-

ance with such notification requirement.

App. 17

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall also comply with the follow-

ing additional condition(s) of probation:

The defendant shall perform 50 hours of community

service over the period of supervision, as directed by

the United States Probation Officer.

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal mone-

tary penalties under the Schedule of Payments.

Total Total Total

Assessment Fine Restitution

$200.06 $ $

* Findings for the total amount of losses are required

under Chapters 109A, 110, 110A, and 113A of Title

18, United States Code, for offenses committed on or

after September 13, 1994, but before April 23, 1996.

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, pay-

ment of the total criminal monetary penalties are due

as follows:

A. Lump sum payment of $200.00 due im-

mediately.

Unless the court has expressly ordered otherwise, if

this judgment imposes imprisonment, payment of

App. 18

criminal monetary penalties is due during imprison-

ment. All criminal monetary penalties, except those

payments made through the Federal Bureau of

Prisons’ Inmate Financial Responsibility Program,

are made to the clerk of the court.

The defendant shall receive credit for all payments

previously made toward any criminal monetary

penalties imposed.

The assessment/fine/restitution is payable to

the CLERK, UNITED STATES COURTS and is

to be addressed to:

U.S. CLERK’S OFFICE

ATTN: FINANCIAL SECTION

301 N. MIAMI AVENUE, ROOM 150

MIAMI, FLORIDA 33128

The assessment/fine/restitution is payable imme-

diately, the U.S. Bureau of Prisons, U.S. Probation

Office and the U.S. Attorney’s Office are responsi-

ble for the enforcement of this order.

Payments shall be applied in the following order: (1)

assessment, (2) restitution principal, (3) restitution

interest, (4) fine principal, (5) community restitution,

(6) fine interest (7) penalties, and (8) costs, including

cost of prosecution and court costs.

App. 19

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

UNITED STATES CASE NO. 07-20331-CR-

OF AMERICA, DIMITROULEAS

Plaintiff,

VS.

JILDARDO MENDEZ,

Defendant. /

ORDER

THIS CAUSE came before the Court pursuant to

a waiver of jury trial consistent with Rule 23(a), Fed.

R. Cr. Proc. Although not requested pursuant to Rule

23(c), Fed. R. Crim. Proc., the Court states specific

findings of fact and conclusions of law.

1. On June 28, 2007, a second Superceding

Indictment was returned charging Mendez with

Count I, Conspiracy to Defraud the United States

(U.S. Dept. of Transportation) by fraudulently obtain-

ing a commercial driver’s license and Count II, At-

tempting, without lawful authority, to cause to be

produced an identification document, affecting inter-

state commerce. [DE-37].

2. On July 5, 2007, the Court considered the

stipulated facts |[DE-42] and heard arguments of

counsel. Since the court did not hear any testimony,

the stipulated facts are adopted as true, there being

no issues of creaib:!'ty for the Court to decide.

App. 20

3. Through Chapter 313, Congress has heavily

regulated Commercial Motor Vehicle Operators. It

has defined commerce, 49 U.S.C. §31301(2), as

affecting trade, traffic and transportation between

states. Congress has defined a commercial drivers

license, 49 U.S.C. § 31301(3), and commercial motor

vehicle, 49 U.S.C. § 31301(4). Congress has mandated

notification requirements for an operator to notify his

employer of traffic violations or license revocations

within 30 days. 49 U.S.C. § 31303(a) and (b). Opera-

tors must also notify prospective employers of previ-

ous employment as an operator of a commercial

motor vehicle. 49 U.S.C. § 31303(c). Congress has

prohibited employers from allowing an operator to

drive while his license is suspended or revoked or

when the operator possesses more than one driver’s

license. 49 U.S.C. § 31304. Congress has established

minimum staadards foi testing and fitness. 49 U.S.C.

§ 31305. Congress has established procedures for

random alcohol and drug testing. 49 U.S.C. § 31306.

Congress has allowed the Secretary of Transportation

to establish uniform minimum standards for the

issuance of commercial drivers’ licenses. 49 U.S.C.

§ 31308. Congress authorized the Secretary of Trans-

portation to establish an information system about

the driving status of commercial motor vehicle opera-

tors. 49 U.S.C. § 31309. Congress has regulated

procedures for disqualifying commercial motor vehicle

operators from driving for at least one year for viola-

tions of crimes (including D.U.I. with a blood alcohol

level of as law as .04 percent, which is lower than the

App. 21

blood level for [.U.I. in almost all states). 49 U.S.C.

§ 31310.

4. On September 14, 2005, Mendez obtained

a commercial drivers license Ly using a fraudulent

DA-348E form that he had purchased for $1,000. He

would have had to surrender any drivers license that

he possessed at that time. F.'S. § 322.03. He then

drove home from the Homestead, Florida Dep’t of

Motor Vehicles Office to his residence in a regular

passenger vehicle. On April 9, 2007, Mendez drove to

the Coral Reef Dep’t of Motor Vehicle Office and was

arrested.

5. Mendez intended to use a fraudulent docu-

ment to obtain a commercial drivers’ license that he

felt he would not otherwise be able to obtain. He was

willing to pay $1,000 to accomplish this goal. Con-

gress has heavily reguiated the method of obtaining

commercial drivers’ licenses. By fraudulently obtain-

ing the license, Mendez was intending to defraud the

issuing agencies, in this case both the State of Flor-

ida, who issued the license, and the U.S. Dept. of

Transportation, who promulgated the minimum rules

and regulations for obtaining such a license. Conse-

quently, the Court finds, beyond a reasonable doubt,

that Mendez intended to defraud both the State of

Florida and the federal government (and any one else

who might have a say in his obtaining the license).

6. The Government need only prove a minimal

nexus with interstate commerce in a § 1028(a) prose-

cution. U.S. v. Klopf, 423 F. sd 1228, 1239 (11th Cir.

App. 22

2005), Mendez drove home from Homestead with the

commercial drivers license on September 14, 2006. He

drove to Cora! Reef on April 9, 2007 with that license.

He lives at 36609 S.W. 217 Avenue in Florida City

and owns Gilbert’s nursery. The Court concludes that

he drove vehicles for both business and pleasure

during the six months that he possessed the fraudu-

lently obtained commercial drivers license. The car

that he drove would have been manufactured outside

the state of Florida. The gasoline that he put in the

car was refined outside the State of Florida. He drove

on roads that were partially supported by federal

funds. The court finds, beyond a reasonable doubt,

that Mendez’s crime had an effect on interstate

commerce.

Wherefore, the Court finds Mendez guilty on both

counts.

DONE AND ORDERED in Chambers at Fort

Lauderdale, Broward County, Florida, this 10th day

of July, 2007.

/s/ William P. Dimitrouleas

WILLIAM P. DIMTTROULEAS

United States District Judge

Copies furnished to:

David O. Markus, Esquire

Laurie E. Rucoba, AUSA