Posted by Quiz Questions:
1. Can a failure to report child abuse that might have happened make one criminally liable for a federal offense?
2. When a person uses a firearm “in connection with another felony offense,” may a court apply the cross reference provisions, U.S.S.G. §§ 2K2.1(c) and 2X1.1, when that other offense is merely a state, rather than federal, crime?
3. What evidence is sufficient to prove that organizers of an American non-governmental organization knew they were (illegally) dealing with a group backed by the Russian government, not just a like-minded foreign group?
Eleventh Circuit Opinions:
Not snitching is usually not a crime, but when the crime involves children, the law has higher standards. When two daycare teachers were caught on video spraying children with cleaning solution, hitting children with books, and dragging children to their cubbies, the director of the daycare facility, Latona Lambert, was charged with failing to report the suspected child abuse under 18 U.S.C. § 2258. In United States v. Lambert, a case of first impression among the circuits, the Eleventh Circuit interpreted this statute, which requires certain people working in federal facilities—mandatory reporters like Lambert—to make “a timely report” should they “learn[] of facts that give reason to suspect that a child has suffered an incident of child abuse.” What does it mean for a mandatory reporter to “suspect” something? The panel held that a reporter must act “when he or she has reason to think child abuse might have taken place.” Because Lambert had reason to suspect one of the children suffered mental injury based on the teachers cursing at the children and playing profane music, along with an inference that she watched the video footage where the teachers were physically harming the children under their care, the appeals court rejected Lambert’s argument that the evidence was insufficient to convict her. [By Vidhi Joshi].
Marcus Telfair dragged a woman out of a residence and down the street while hitting her with a gun. He was charged federally with possession of a firearm by a prohibited person, per 18 U.S.C. § 922(g)(1). At sentencing, the PSR suggested the court use a cross reference to leave the gun guideline and instead apply the harsher kidnapping guideline. Telfair objected and the sentencing court agreed; it chose not to apply the cross reference because, it believed, the phrase “another offense” means “another federal offense,” and Telfair’s conduct counted only as state kidnapping, not federal kidnapping. The government appealed and, in United States v. Telfair, the Eleventh Circuit vacated the sentence. After reviewing dictionary definitions, the Court held that the cross reference in U.S.S.G. § 2K2.1(c)(1)(A) applies to both state and federal offenses. The panel next held that “[b]ecause there is no federal guideline for the offense of state kidnapping, we ‘apply the most analogous offense guideline.’” U.S.S.G. § 2X5.1. To determine the most analogous offense guideline, a court should consider whether the offenses target the same actus reus. The panel concluded federal kidnapping is the “most analogous” to kidnapping under Georgia law, so Telfair’s sentence should be cross-referenced to that guideline. [By Wes Bryant].
In United States v. Romain, the Eleventh Circuit affirmed convictions for the crime of conspiring to act as a foreign agent against several African People’s Socialist Party members (based in Florida) who worked with Aleksandr Ionov, a Russian intelligence asset. The defendants failed to notify the Attorney General, as required by 18 U.S.C. § 951, of their work with the Russians. Ionov ran an “Anti-Globalization” group backed by the Russian government. Over several years, he got Party members to draft a UN petition, publish pro-Russia articles, and protest outside Meta’s offices after Russia invaded Ukraine. Party leader Omali Yeshitela told other members that Ionov’s group was an “instrument of Russian government” then added “this does not disturb us.” The court found that § 951(d)’s “direction or control” language sets two different standards. Direction means something less demanding than control. The court described it as more like “guidance” than an employer-employee relationship. The defendants argued they were just ideological allies with Ionov who happened to comply with requests. The court said that’s not a defense: Shared ideology explains motive to submit to direction; it doesn’t disprove that the defendants agreed to act under the foreign agent’s direction. Practice tip: If you’re defending a § 951 case, “we agreed because we believed in the cause too” is not a winning theory post-Romain. Focus instead on showing the foreign national never actually initiated or steered the specific act charged. [Kenyatta Barthelemy].
Quiz Answers:
1. Yes, a failure to report child abuse that might have happened makes one criminally liable for a federal offense under the Victims of Child Abuse Act, 18 U.S.C. § 2258.
2. The court will apply the “most analogous” federal felony offense, so when the client commits a state kidnapping, the court will apply the cross-reference to the federal kidnapping guideline provision.
3. Where an American organization’s members knew that a foreign group it collaborated with was an “instrument of Russian government,” that was enough evidence to convict them of conspiring to be unregistered foreign agents.
