United States v. Timothy Jermaine PateUnited States v. Timothy Jermaine Pate
*2 Before N EWSOM , B RANCH , and L AGOA , Circuit Judges.
L AGOA , Circuit Judge:
Title 18 U.S.C. § 1521 prohibits the filing of a false lien or encumbrance against the property of any officer or employee of the United States “on account of the performance of official du- ties.” In 2018, Timothy Jermaine Pate filed various false liens against John Koskinen, the former Commissioner of the Internal Revenue Service, and Jacob Lew, the former Secretary of the Treasury. There is no dispute that Pate filed the false liens to retal- iate 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 federal govern- ment. We therefore are presented with the following question: Does § 1521 apply to false liens filed against former federal officers and employees for official actions they performed while in service with the federal government? We conclude that the answer to this question is yes—the plain language of § 1521 covers both current and former federal officers and employees. Thus, for the reasons discussed below, and with the benefit of oral argument, we affirm Pate’s convictions predicated on violations of § 1521.
I. FACTUAL AND PROCEDURAL BACKGROUND On October 3, 2018, a grand jury indicted Pate, who often referred to himself as “Akenaten Ali,” on sixteen counts of filing false retaliatory liens against federal officials in violation of § 1521 *3 and five counts of false bankruptcy declarations in violation of 18 U.S.C. § 152(3). This appeal concerns only four of the filing-false- lien counts, with one set of counts pertaining to false liens filed against John Koskinen, the former Commissioner of the Internal Revenue Service (“IRS”), and the other set of counts pertaining to false liens filed against Jacob Lew, the former Secretary of the Treasury. At the times relevant to this appeal, Koskinen and Lew were no longer government officials.
As to the counts pertaining to Koskinen, Count 1 alleged that Pate filed a false retaliatory lien against Koskinen on or about March 6, 2018. Likewise, Count 6 alleged that Pate filed another false retaliatory lien against Koskinen on or about May 7, 2018. As to the counts pertaining to Lew, Count 5 alleged that Pate filed a false retaliatory lien against Lew on or about May 1, 2018. Simi- larly, Count 8 alleged that Pate filed another false retaliatory lien against Lew on or about May 7, 2018. As discussed below, these counts stemmed from Pate’s filing of the false liens during a sepa- rate civil lawsuit that Pate filed against Koskinen, seemingly in an attempt to recoup a tax credit from the IRS. As relevant to this appeal, the magistrate judge entered a plea of not guilty for Pate as to these criminal counts, and the matter proceeded to trial on Oc- tober 15, 2019.
At trial, the government called Jamie Hodge, the deputy clerk for the United States District Court for the Southern District of Georgia, as a witness. Hodge testified that Pate filed a complaint against Koskinen in a separate civil action on October 10, 2017 and *4 indicated that an affidavit of compliance was attached to the com- plaint, stating that the IRS had not returned to Pate a tax credit for 2015 and 2016, [1] that Pate was not a United States citizen, that Pate would never play the role of a debtor, and that Pate was an “heir to the Kingdom of Morocco.” In his filings, Pate threatened to file liens against any judge, tax official, attorney, government official, or individual who opposed him in his litigation against Koskinen.
The United States Department of Justice (“DOJ”) filed a mo- tion to dismiss on Koskinen’s behalf in this separate civil lawsuit, arguing that Pate was a “tax defier who participated in an original issue discount . . . scheme to defraud the government” and that such a scheme was a “frivolous tax argument that has been around in various forms for many years.” In his response to DOJ’s motion, Pate threatened to file liens against Koskinen, Lew, and others if the IRS did not return to Pate the purported tax credit and if Koskinen, Lew, and others failed to answer his questions. Pate sub- sequently carried out his threats, filing a $33 million maritime lien against Koskinen on March 6, 2018 and a $15 million maritime lien against Lew on May 1, 2018. While the motion to dismiss in this separate civil lawsuit was pending, Pate also filed another lien against Koskinen for $33 million and another lien against Lew for $15 million in the form of U.C.C. Financing Statements on May 7, *5 2018. Thereafter, the district court presiding over the civil lawsuit dismissed Pate’s case and, through a miscellaneous proceeding, de- clared the liens null and void, expunged them from the record, and prohibited Pate from filing such actions and liens without the dis- trict court’s prior authorization.
At the criminal trial relevant to this appeal, the government also called Koskinen and Lew as witnesses. Koskinen testified that he was Commissioner of the IRS from December 2013 to Novem- ber 2017 and that he was currently retired. He denied having any meetings, communications, correspondence, contracts, or loans with Pate. He also denied owing Pate $33 million when asked about the maritime lien and U.C.C. Financing Statement lien. With respect to the U.C.C. Financing Statement lien, Koskinen identified the mailing address listed below his name as belonging to the IRS headquarters in Washington, D.C.
During Lew’s testimony, Lew stated that he was the Secre- tary of the Treasury between February 2013 and January 20, 2017, and that he currently worked as a partner in a private equity firm and as a visiting professor at Columbia University. Like Koskinen, Lew denied having any knowledge of Pate or having any commu- nications or loans with him. He also denied owing Pate $15 million when asked about the maritime lien and U.C.C. Financing State- ment lien. With respect to the U.C.C. Financing Statement lien, Lew identified the mailing address listed below his name—i.e., 1500 Pennsylvania Avenue NW, Washington, D.C.—as belonging to the Department of the Treasury.
After the government rested, defense counsel for Pate moved for a directed verdict as to Counts 1, 5, 6, and 8, arguing that “the federal official[s] alleged in those counts, former Commis- sioner [Koskinen], and former Secretary . . . Lew, were not public officials at the time” Pate filed the liens. For this reason, defense counsel asserted that § 1521 did not apply to Pate because § 1521, and its cross reference to 18 U.S.C. § 1114, did not pertain to former government officials. The district court took the motion under ad- visement and denied it, ruling that there was sufficient evidence from which the jury could conclude that Pate filed the liens against Koskinen and Lew “on account of the performance of official du- ties.” Pate did not present a further defense, and the jury found him guilty on all twenty-one counts. The district court subse- quently sentenced Pate to 300 months’ imprisonment, and Pate filed this timely appeal relevant to the four counts of filing false liens.
II. STANDARD OF REVIEW
“We review questions of statutory interpretation de novo.”
United States v. Johnson,
III. ANALYSIS
On appeal, Pate advances the same argument that he made to the district court during his motion for a directed verdict—that § 1521 does not apply to him because, as he claims, § 1521 does not apply to former government officials like Koskinen and Lew. For *7 the below reasons, we are not persuaded by Pate’s argument and his reading of § 1521.
Statutory interpretation analysis “begins and ends with the
statutory text.” Singh v. U.S. Att’y Gen.,
Section 1521, the primary statute under review, provides: 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.
For purposes of § 1521, Congress premised liability on an ac- tion taken against “an individual described in section 1114,” *8 thereby incorporating portions of § 1114. Section 1114 makes it a crime to kill or attempt to kill [2] :
[A]ny officer or employee of the United States or of any agency in any branch of the United States Gov- ernment (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.
Section 1114 addresses two categories of individuals. First, § 1114 addresses “any officer or employee of the United States or of any agency in any branch of the United States Government (in- cluding any member of the uniformed services).” And, under this category, § 1114 makes it a crime to kill or attempt to kill: (1) a fed- eral officer or employee “while . . . engaged in . . . the performance of official duties” or (2) a federal officer or employee “on account of the performance of official duties.” In this sense, § 1114 contains both a temporal qualification on liability—i.e., making it a crime to kill or attempt to kill a federal officer or employee while that officer or employee is presently “engaged in” an official act—and a causal qualification on liability—i.e., making it a crime to kill or attempt *9 to kill a federal officer or employee because of an act that officer or employee performed pursuant to his official duties. Second, § 1114 addresses any person who lends assistance to a federal officer or employee. For our purposes, the first category of individuals de- scribed in § 1114 takes priority because Koskinen and Lew served as officers or employees of the United States or an agency thereof.
The key phrase in this case is “on account of the perfor- mance of official duties” as set forth in § 1521 and its interaction with the words “any officer or employee” as set forth in § 1114 and incorporated by reference in § 1521. A cardinal rule of statutory interpretation is “that ‘[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.’” Corley v. United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)); see In re Appling, 848 F.3d 953, 959 (11th Cir. 2017) (“If possible, every word and every provision is to be given effect . . . . None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.” (quoting Antonin Scalia & Bryan A. Garner, Reading Law 174 (2012))). As we read the language of § 1521, limiting its scope to current officers and employees fails to give full effect to the phrase modifying the preceding statutory terms, “on account of the performance of offi- cial duties.” See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (explaining that a statute’s meaning is “mandated” by its “grammatical structure”).
Section 1521 provides a federal forum to prosecute forms of
economic retaliation against federal officers and employees.
[3]
Sig-
nificantly, § 1521 does not criminalize the filing of a false lien
against an individual’s property based simply on his employment
status. Instead, Congress’s phrase “on account of the performance
of official duties” modifies the preceding text in § 1521— “an indi-
vidual described in section 1114”—and establishes the prohibited
purpose of filing a false lien or encumbrance, i.e., creating a causal
connection between the filing of a false lien or encumbrance and
some act taken by a federal officer or employee as part of his official
duties. Cf. O’Gilvie v. United States,
Notably, the statutory language modifying “an individual described in section 1114”—i.e., “on account of the performance of official duties”—does not contain a temporal restriction limiting the statute’s coverage to only current federal officers or employees performing present acts, as seen in the dual qualifications of § 1114. Instead, liability under § 1521 only hinges on the past performance of official acts by an individual who has acted in an official capacity. This makes sense. Unlike an attempt to kill a federal officer or em- ployee while he is “engaged in” the performance of his official du- ties as described in the temporal liability portion of § 1114, filing a lien does not happen simultaneously with the official act needed to establish liability under § 1521—the lien is filed in reaction to some official act which already occurred. And the consequences of that official act can continue after the individual’s tenure in office or employment has ended, as can the intent to retaliate against the individual for that act.
Because § 1521’s prohibition depends upon what an individ- ual did while acting as a federal officer or employee, and not simply his employment status at the time of the action at issue, the natural reading of the statute’s language leads us to conclude that the terms “officer” and “employee” encompass both current and former of- ficers and employees. It is of no consequence that the individual has retired or otherwise left his office or employment at the time the false lien was filed. What matters is whether the false lien was filed against the federal officer or employee “on account of the per- formance of official duties”—i.e., the lien was filed because of an *12 action taken by that officer or employee irrespective of the current employment status of that officer or employee. And, while the dis- sent relies on various dictionary definitions to conclude that the terms “officer” and “employee” mean current officers and employ- ees, Dis. Op. at 4–5, the dissent, also acknowledges that such terms may include either or both current and former officers and employ- ees in certain instances, id. at 17–20. We believe that this is such an instance, given the language and construction of § 1521. [4]
A number of other considerations support this reading.
First, § 1521’s cross-reference to “an individual described in section
1114” incorporates that latter statute’s use of broadening lan-
guage—i.e., “any officer or employee of the United States.” § 1114
(emphasis added); see United States v. Caniff,
While we respectfully acknowledge the arguments made by the dissent, problems with the dissent’s more limited reading of § 1521’s language arise when applied to the identical language found in § 1114. Section 1114 has separate temporal and causal qualifications on liability under the statute. The temporal lan- guage—i.e., “while such officer or employee is engaged in . . . the performance of official duties”—that qualifies liability against a fed- eral officer or employee in one portion of § 1114 is not found in § 1521. The temporal portion of § 1114 unambiguously refers to *14 what an officer or employee is doing at the time the defendant killed or threatened to kill him. This would include, for example, shooting a federal law enforcement officer trying to serve a search warrant.
In contrast, § 1114’s causal qualifications on liability—i.e., “on account of performance of official duties”—is identical to the language used in § 1521, and it unambiguously prohibits killing or attempting to kill a federal officer or employee because of some- thing he did in the past as part of his official duties. Some examples of acts contemplated by § 1114 include: attempting to kill a federal prosecutor for an investigation he spearheaded or a case he tried; attempting to kill a Cabinet officer for a policy he implemented; attempting to kill a federal law enforcement officer whose under- cover work led to a successful prosecution; and attempting to kill a retired federal judge for a sentence he imposed or an opinion he authored. Under the dissent’s interpretation, federal criminal lia- bility and a federal forum to prosecute such criminal liability disap- pear under § 1114 once the individual’s tenure in office or term of employment ends. As already discussed in connection with the identical language used in § 1521, we believe that this reading is too narrow and does not give full effect to the statutory language re- garding the performance of a past official act without the qualifica- tion of a temporal employment restriction.
Finally, as noted by the dissent, purposivism, which de-
scribes a method of statutory construction, cannot guide our anal-
ysis. Dis. Op. at 13, 16–17. Indeed, it is axiomatic that a statute’s
*15
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,
But even if we assume that the dissent’s reading is correct, and liability under § 1521 is coterminous with a federal officer or employee’s term in office or employment, we still must consider how it applies to that second category of individuals described in § 1114 and incorporated by reference into § 1521. As noted earlier, *16 in addition to federal officers and employees, § 1114 also describes “any person assisting such an officer or employee,” and prohibits killing or attempting to kill that person either while he is assisting the federal officer “in the performance of such duties” or “on ac- count of that assistance.” Examples might be a state or local law enforcement officer assisting a federal law enforcement officer in an ongoing investigation, or a government informant who pro- vided evidence and testimony against criminal co-conspirators.
A reading of the statute’s plain language—“any person as- sisting such an officer or employee in the performance of such du- ties or on account of that assistance”—does not suggest that its pro- tection ends at some ascertainable point in time. Like the language regarding a federal officer or employee, the language regarding a person who lends assistance to a federal officer or employee has both a temporal qualification on liability—i.e., prohibiting the kill- ing or the attempting to kill “any person assisting such an officer or employee in the performance of such duties”—and a causal quali- fication on liability—i.e., prohibiting the killing or the attempting to kill “any person . . . on account of that assistance.” Because of the causal language, there is no textual indication that the prohibi- tion as it relates to the non-federal actor expires once the federal actor retires or otherwise leaves federal employment. To the con- trary, the protection provided to the non-federal actor depends upon his own action—i.e., the assistance of a federal officer or em- ployee either in the instant moment or in the past—and has noth- ing to do with the continuing employment status of the federal *17 actor. While the dissent contends that “we needn’t consider” a non-federal actor who lends assistance to a federal officer or em- ployee, the dissent’s reading of § 1114 and § 1521 would provide greater protection, including a federal forum to prosecute, to the non-federal actor than to the federal officer or employee who the non-federal actor assisted because, under the dissent’s reading, these statutes do not apply to federal officers or employees once their employment status has ended. Dis. Op. at 9–10 n.4. That conclusion comes despite these statutes using similar causal lan- guage as it pertains to both a federal officer or employee and a per- son who lends assistance to such a federal actor. And, as shown, the causal language as it pertains to such a person who lends assis- tance to a federal officer or employee is not predicated on the fu- ture employment status of the federal actor.
While Congress could certainly write such a statute, we do
not believe that the language of either § 1114 or § 1521 supports
that reading here. Instead, Congress’ use of the causal qualifica-
tion—“on account of the performance of official duties”—that
premises criminal liability on filing or attempting to file a lien or
encumbrance against the real or personal property of a federal of-
ficer or employee based on an action that the officer or employee
did while performing his official duties means that § 1521 unambig-
uously covers both current and former officers and employees of
the United States. Because we find the express language under §
1521, as well as the language that § 1521 incorporates from § 1114,
to be unambiguous, we see no need to examine other statutes and
*18
Congress’s intent behind passing those other statutes, as the dissent
stakes much of its argument on. Dis. Op. at 5–6, 9–10 n.4; see
United States v. Warren,
IV. CONCLUSION
Thus, for the foregoing reasons, we affirm Pate’s convic- tions predicated on filing false and retaliatory liens against former Commissioner Koskinen and former Secretary Lew under the plain language of § 1521.
AFFIRMED. *19 N EWSOM , Circuit Judge, dissenting:
Although this case arises against an odd factual backdrop and involves a pretty unsympathetic defendant, it turns on a remarka- bly straightforward question of statutory interpretation: Is a for- mer government official an “officer or employee of the United States” within the meaning of 18 U.S.C. § 1114 and, thereby, of 18 U.S.C. § 1521? To resolve that question, we must, of course, afford the quoted language its plain and ordinary meaning. But by hold- ing that two individuals who have retired from civil service are still “officer[s] or employee[s] of the United States,” the majority con- strues the pivotal phrase in a manner that is neither plain nor ordi- nary. Because the majority’s construction contravenes the text, structure, and statutory context of §§ 1114 and 1521, I respectfully dissent.
I A Like the majority, I begin my analysis with the statute of conviction, 18 U.S.C. § 1521. Enacted as part of the Court Security Improvement Act of 2007, Pub. L. No. 110-177, 121 Stat. 2534 (2008), § 1521 says, 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 *20 encumbrance is false . . . shall be fined under this title or imprisoned for not more than 10 years, or both. 18 U.S.C. § 1521 (emphasis added).
To understand the italicized phrase, we must look to the statutory section that it cites, 18 U.S.C. § 1114. With its origins in the Act of May 18, 1934, Pub. L. No. 73-230, 48 Stat. 780, the cur- rent version of § 1114 says the following:
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 of- ficer 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(a); see also United States v. Feola,
As I read §§ 1114 and 1521, they don’t criminalize Timothy Pate’s conduct. Very briefly, Pate filed two false tax liens against each of two individuals. In the spring of 2018, he filed a pair of liens against the property of former IRS Commissioner John Koskinen, who had concluded his tenure in office several months earlier. And *21 in May 2018, he filed two liens against the property of former Treasury Secretary Jacob Lew, who had likewise wrapped up his time in office several months earlier. Pate’s conduct was undoubt- edly improper. It was almost certainly tortious. But it wasn’t crim- inal. For reasons I’ll explain, because it is undisputed that neither Koskinen nor Lew was an “officer or employee of the United States” at the time that Pate filed liens against their property, those liens fall outside the scope of § 1521’s prohibition.
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,
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.” More particularly, we must ask whether that phrase—as used here—would be under- stood by the average speaker of American English to include for- mer officers or employees of the United States. It wouldn’t be. *22 4
Start with the ordinary meaning of the statutory phrase’s constituent parts. With respect to the term “officer,” the Diction- ary Act provides a helpful hint. It states 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. Needless to say, after one leaves office, he is no longer “authorized by law to perform the duties of the office.” So the Dictionary Act gives us one good rea- son to think that § 1114’s reference to federal “officer[s]” is best read to mean current officers.
Standard dictionary definitions of both “officer” and “em- ployee”—which the majority ignores—likewise indicate an ele- ment of currency. Consider the present-tense verbs (with my em- phasis) used to define those terms. The Oxford English Dictionary defines “officer” as a “person who holds a particular office, post, or place,” and as one “holding office and taking part in the manage- ment or direction of a society or institution, esp[ecially] one hold- ing the office of president, treasurer, or secretary; an office-holder.” Officer, Oxford English Dictionary (online ed.). 1 It similarly de- fines “employee” in present-tense terms as a “person who works for an employer.” Employee, id. 2 Merriam-Webster’s Collegiate Dictionary is of a piece. It defines “officer” as “one who holds an *23 office of trust, authority, or command,” Officer, Merriam-Web- ster’s Collegiate Dictionary 861 (11th ed. 2014), and “employee” as “one employed by another usu[ally] for wages or salary and in a position below the executive level,” Employee, id. at 408. So too, Black’s Law Dictionary: An “officer” is “[s]omeone who holds an office of trust, authority, or command.” Officer, Black’s Law Dic- tionary 1257 (10th ed. 2014). And an “employee” is “[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire.” Employee, id. at 639.
The popular and legal dictionaries’ concurrence is powerful
evidence of those terms’ ordinary meanings. See, e.g., Spencer v.
Specialty Foundry Prods. Inc.,
Pate’s ordinary-meaning, present-tense interpretation is
confirmed by the broader statutory context—in particular, by
other statutes that incorporate § 1114. Both 18 U.S.C. § 111 and 18
U.S.C. § 115 include explicit references to individuals “who for-
merly served as a person designated” in § 1114. Those cross-refer-
ences make perfect sense on Pate’s reading of § 1114—they refer to
an individual “who formerly served as [an officer or employee of
the United States].” The majority’s decidedly un-ordinary current-
or-former-officer-or-employee interpretation, by contrast, makes
nonsense of them; on that reading, those statutes cover any indi-
vidual “who formerly served as [a current or former officer or
*24
employee of the United States].” Because, in the majority’s view,
§ 1114 has always included former employees and officers, § 111’s
and § 115’s specific references to former officers and employees are
superfluous. But see Duncan v. Walker,
What’s more, the fact that Congress chose to modify § 111’s
and § 115’s cross-references to § 1114 to explicitly include former
officers and employees suggests that absent some similar modifica-
tion, § 1114 doesn’t include them. The language that Congress
used 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. But it doesn’t, and so it can’t. Cf. United
States v. Papagno,
Unsurprisingly, the dictionary definitions and the evidence from statutory context cohere with how the words “officer” and “employee” are used in everyday parlance. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (2012) (“Words are to be understood in their ordinary, everyday meanings . . . .”); United States v. Caniff, 916 F.3d 929, 941 (11th Cir. 2019) (Newsom, J., concurring in part and dissenting in part) (emphasizing the import of “how people talk”), vacated and super- seded, 955 F.3d 1183 (11th Cir. 2020) (per curiam). We federal judges, for instance, had jobs before we came to the bench. Some of us worked in private practice, others in state government. But it would be passing strange to describe a judge as an “employee” of the law firm for which she used to work. And it would be stranger still to describe a federal judge as an “officer” of a state she used to serve.
A hypothetical underscores the point. Imagine a law provid- ing that “officers or employees” of the IRS may not take money from accounting firms. Suppose further that on the very same day that Pate filed a lien against him, Koskinen had accepted a job with one of the “Big Four” that came with a generous signing bonus. Would we think Koskinen had violated the law? Inconceivable. Reasonably read, our hypothetical statute’s prohibition on taking money from accounting firms ends when government employ- ment does. And so it is with § 1114.
To sum up: Based on its constituent parts, the broader stat- utory context, and lessons from ordinary usage—all of which the *26 8
majority disregards—I would hold that former officers and em- ployees aren’t the sorts of “individual[s] described in section 1114,” 18 U.S.C. § 1521, and therefore, that § 1521 didn’t prohibit Pate’s conduct.
The majority and the government present several argu- ments for reading § 1114—and thus § 1521—to include former of- ficers and employees. None is persuasive.
a
First, the majority proposes a two-track reading of § 1114 that, on its theory, enables § 1521 to reach former federal officers and employees. The key division, from the majority’s perspective, is between (a) crimes committed “while such officer or employee is engaged in . . . the performance of official duties” and (b) those committed “on account of the performance of official duties.” 18 U.S.C. § 1114 (emphasis added); see Maj. Op. at 8–11, 13–14. The first plainly includes a temporal element—hence the “while.” In contrast, the majority observes, § 1114’s “on account of” language contains no temporal element—only a causal one. And “[n]ota- bly,” the majority says, § 1521 “does not contain a temporal re- striction” at all, as “in the dual qualifications of § 1114.” Maj. Op. at 11. So, it concludes, the “only” thing that matters is that the victim was targeted “on account of” his official actions; whether he’s a current or former federal officer or employee is “of no con- sequence.” Id.
Though plausible at first blush, the majority’s interpretation doesn’t withstand careful scrutiny. First, and most immediately, it makes a mess of § 1114’s syntax. Both the “while engaged in” and “on account of” clauses relate to the performance of official du- ties—in particular, they explain the relationship that a killing must have to an officer’s or employee’s performance of official duties in order to constitute a crime under § 1114. See 18 U.S.C. § 1114 (for- bidding the killing of federal officers and employees “while such officer or employee is engaged in or on account of the performance of official duties” (emphasis added)). But these clauses, which op- erate to limit the circumstances under which criminal liability ex- ists by virtue of § 1114, provide no bases on which to expand the scope of the terms that precede them.
In much the same way, the majority’s reading conflicts with § 1521’s structure. That provision, recall, forbids filing “any false 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. Accordingly, criminal liability arises when someone (1) files a false lien (2) against the property of a qualifying individual (3) on account of that individual’s performance of official duties. 4 The majority’s *28 reading, at bottom, means that whenever the third, “on account of” condition is met, the second is satisfied as well. But that ignores the fact that in order to be a qualifying individual, the victim must be an “officer or employee of the United States.”
Next, the majority observes that we should strive to inter-
pret a statute “so that effect is given to all its provisions, so that no
part will be inoperative or superfluous, void or insignificant.” Maj.
Op. at 9 (quoting Corley v. United States,
a federal officer or employee because of something he did as part of his official duties.” Id. at 10 (emphasis omitted). But it seems to me that the majority overlooks a key piece of its own statement— namely that, in addition to requiring a causal connection between the officer or employee’s discharge of his or her official duties and the lien’s filing, the statute requires, separately, that the victim be “a federal officer or employee.” Id.; see also 18 U.S.C. § 1114. Both causation and job status are necessary conditions to conviction, and neither is superfluous of the other. If the victim were a federal of- ficer or employee, but the lien wasn’t filed “on account of” some- thing he did in his official capacity, the defendant wouldn’t be crim- inally liable—as even the majority admits. 5 See Maj. Op. at 10. For the exact same reason, if the lien were filed “on account of” some- thing the victim did in his official capacity, but she was no longer a federal officer or employee, the defendant wouldn’t be liable. The majority singularly—and impermissibly—focuses on one textual limitation to liability to the exclusion of the other.
b
The government separately contends that existing prece- dent supports its interpretation. The majority never mentions, and thus presumably doesn’t buy, the government’s argument—and with good reason. Even so, for the sake of completeness, I’ll *30 explain why the government’s precedent-based arguments simi- larly misfire.
The government particularly emphasizes the Fifth Circuit’s
decision in United States v. Raymer,
With respect, I find Raymer unpersuasive—and the govern-
ment’s contention that Congress has somehow ratified it in the in-
tervening decades even more so. Beginning with Raymer itself, I
see several problems. First, the Fifth Circuit relied heavily on what
it took to be § 1114’s “obvious purpose,” but purposes, obvious or
otherwise, don’t provide license to skirt statutory text. And in any
event, “[t]he best evidence of [any law’s] purpose is the statutory
*31
text adopted by both Houses of Congress and submitted to the
President.” West Va. Univ. Hosps., Inc. v. Casey,
Nor am I persuaded by the Raymer court’s contention that
retired officials should be treated like off-duty officials—and thus
covered by § 1114—because they are just “permanently off-duty.”
Whatever Raymer’s merits or demerits, though, the govern-
ment next contends that Congress ratified the Fifth Circuit’s inter-
pretation of § 1114 when it enacted § 1521. I disagree. 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,
The government’s reliance on United States v. Feola is
equally misplaced. There, the Supreme Court considered 18
U.S.C. § 111—which, as already explained, cross-references
§ 1114—and held that it didn’t require an assailant to know that his
victim was a federal officer.
But we’ve already held that this concern for “federal func-
tions” can’t be read for all it might be worth. In United States v.
Kirkland,
c
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 *34 achieve its purposes.” Director, Off. of Workers’ Comp. Programs, Dep’t of Lab. v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 135 (1995). Chief among the “laudatory purposes” served by §§ 1114 and 1521, the government says, is “maximum protec- tion for federal officers and their functions.” Br. of Appellee at 25– 26. And to advance that goal, the government insists, we should construe those statutes to cover former officers and employees.
For the same reasons I find Raymer’s purposivism unpersua-
sive, I can’t accept the government’s invitation to stretch the text.
Because “no legislation pursues its purposes at all costs,” Rodriguez
v. United States,
That is especially so in the criminal context. Courts 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.” United States v. Gradwell,
None of this, of course, is to say that the terms “officer” and “employee” can never include formers. But examining decisions that have held that other statutes use those terms to cover former officers and employees shows that § 1114 (as incorporated into § 1521) is quite different.
Take Robinson v. Shell Oil Co.,
Davis v. Michigan Department of Treasury, 489 U.S. 803 (1989), is similar. That case presented the question whether retire- ment benefits paid to former federal employees came within the ambit of the following provision:
The United States consents to the taxation of pay or compensation for personal service as an officer or em- ployee of the United States . . . by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation. 4 U.S.C. § 111(a).
In Davis, the Supreme Court rejected a state’s contention
that retired federal employees weren’t protected by that provision.
One might analogize this case to Davis—on some level, after all, retirement benefits for and retaliatory actions against a former federal employee both relate back to the individual’s time in gov- ernment service. Conceptually, that makes sense. But we deal with particular texts, not abstract concepts. And as already ex- plained, the key timing element in § 1521’s text—the moment when we must assess an individual’s status—is when the retaliatory lien was filed. Of course, the time when the victim took the actions that led the perpetrator to retaliate matters too—the “on account of” condition makes that much clear. But while that condition is a necessary one, it’s not sufficient. Thus, § 1521’s text compels a dif- ferent conclusion here than in Davis.
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 Robinson nor Davis suffices to show that the or-
dinary meaning of those terms includes ex-officers or erstwhile em-
ployees. Here, given the absence of textual indicators supporting
*38
a broader reading of the terms, 8 I cannot adopt the majority’s (or
the government’s) expansive interpretation. Cf. Nichols v. United
States,
* * *
“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,
I respectfully dissent.
Notes
[1] Pate previously filed frivolous tax returns with the IRS for 2015 and 2016, claiming refunds roughly totaling $3.8 million. When the IRS failed to pay the refunds he requested, Pate filed a petition in the United States Tax Court. Ul- timately, the Tax Court dismissed Pate’s case.
[2] The current language in § 1114 covering “any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services)” was enacted in 1996. See The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104– 132, § 727, 110 Stat. 1214, 1302.
[3] Section 1114 does the same thing although for a more serious offense—mur- der.
[4] For further support in arguing that the term “officer” means current officers, the dissent also references the Dictionary Act’s statement that, “[i]n determin- ing the meaning of any Act of Congress, unless the context indicates other- wise . . . ‘officer’ includes any person authorized by law to perform the duties of the office.” Dis. Op. at 4 (quoting 1 U.S.C. § 1). We do not find this state- ment to undercut our interpretation of § 1521 for at least two reasons. First, as explicitly noted in the statement, “context” is key. § 1. Second, and im- portantly, there is no question that Koskinen and Lew were “authorized by law to perform the duties of the office[s]” that they held. Id. Indeed, this case would not be before us had they not been federal officers at one point. What matters is that they were “authorized by law to perform the duties of the of- fice[s]” that they held, id., and, that “on account of the performance of official duties,” Pate filed false retaliatory liens against them, § 1521, which he une- quivocally did.
[1] See https://www.oed.com/view/Entry/130647 (last visited Aug. 1, 2022).
[2] See https://www.oed.com/view/Entry/61374 (last visited Aug. 1, 2022).
[3] The majority refuses to consider the import of §§ 111 and 115 on the ground, it says, that “§ 1521 unambiguously covers both current and former officers and employees of the United States.” Maj. Op. at 17 (emphasis added). Need- less to say, I disagree. On balance, § 1521 and its referent § 1114 are best un- derstood not to reach former officers and employees. But at the very least, it can’t be said that they so “unambiguously” do so as to warrant ignoring the contrary structural evidence that §§ 111 and 115 provide.
[4] Because the parties focus exclusively on the category of federal “officer[s and] employee[s]” referenced in § 1114,we needn’t consider the other category of individuals described in that section—i.e., “any person assisting such an officer or employee in the performance of such duties.” Even if we did, though, I don’t see how the “assist[ant]” category could be leveraged to expand the of- ficer-or-employee category beyond its ordinary meaning to include former
[5] Which makes the majority’s embrace of the anti-surplusage canon particu- larly odd. Its own concession illustrates that the “on account of” language has independent bite and thus isn’t superfluous.
[6] The government also relies on two other out-of-circuit authorities that cite
Raymer—United States v. Martin,
[7] Where, as here, text, context, and structure favor an interpretation of a crim-
inal statute that excludes the charged conduct, the rule of lenity layers “extra
icing on a cake already frosted.” Van Buren v. United States,
[8] The majority emphasizes § 1114’s use of the word “any” as a reason to
“broaden[]” the statute’s reach. See Maj. Op. at 12–13. But while “any” is
surely a capacious term, the net that it casts is necessarily limited by a proper
understanding of the nouns that it modifies. See National Ass’n of Mfrs. v.
Dep’t of Def.,