Federal Criminal Lawyer Blog
As you may remember, we have been closely following United States v. Svete, which involves the federal criminal mail fraud statute, in the Eleventh Circuit Court of Appeals in here Atlanta, Georgia. In this post back in April 2008, Paul Kish explained the facts of the case and the original Eleventh Circuit’s decision’s potential implications for criminal defendants. In early July, Carl Lietz reported in this post that the Court had vacated its opinion in Svete and decided to re-hear the case before the entire Court. He later reported in this post that the Court had identified the issues on which it would focus. In September we again kept you updated with this post by linking to the briefs that had been submitted to the court by the defendants and the National Association of Criminal Defense Lawyers.
This Monday, the Eleventh Circuit Court of Appeals finally filed their en banc opinion in this case. Unfortunately for criminal defendants, the Court overruled its very sensible opinion in United States v. Brown and broadened its definition of mail fraud, and by extension, probably the other types of federal fraud, as well. We hope that this is not the final installment in this case, as we believe that the Court violated the contemporary understanding doctrine in this case.
Elementary social studies classes teach about one of the most important aspects of our government: the separation of powers between the three branches of government. This separation of powers provides checks and balances so no single branch becomes too powerful. This system, established by the framers of the Constitution, is the basic foundation of our democracy.
The contemporary understanding doctrine helps maintain the separation of powers by preventing judges from usurping Congress’s legislative role. It mandates that judges interpret laws by taking their ordinary meaning at the time Congress enacted them, rather than giving laws a modern interpretation. The idea is that Congress is the branch of government that should update laws, not judges. Judges should not be lawmakers. Our elected representatives in Congress are the lawmakers.
In this case, the Eleventh Circuit used modern sources to update (and expand) its prior interpretation of the very old mail fraud statute. By disregarding the definition of fraud as it was intended at the time the statute was made law, the Court has legislated from the bench. This decision violates the fundamental principles of democracy.
Chief Judge Edmondson, who wrote the opinion in Brown, wrote a concurring opinion in Svete that stressed the necessity of capturing the historical meaning of the statute as Congress enacted it. He concurred in the result because he believed the error was harmless due to the complexity of the scheme in this case, but his analysis of the law was faultless. The historical meaning of fraud, combined with the rule of lenity, “requires the government to show that the pertinent scheme or misrepresentation was capable of inducing reliance on the part of a reasonable person exercising ordinary prudence for the protection of his own interests.” We hope that the United States Supreme Court will decide to hear this case on appeal and agrees with Chief Judge Edmondson.