Trump Rightly Pardons 2 Florida Divers Who Became Federal Felons Because of an Honest Mistake
John Moore and Tanner Mansell were convicted of theft after they freed sharks they erroneously thought had been caught illegally.
Here are some things you don't do when you know you are committing a crime. You don't do it in broad daylight in front of witnesses. You don't enlist the help of those witnesses and invite them to record the event with their smartphones. You don't report what happened to a law enforcement agency or leave evidence of the incident in plain view in a public place.
John Moore and Tanner Mansell, two Florida diving instructors, did all of those things on August 10, 2020, when they took Camryn Kuehl and her family on a snorkeling trip and came across a buoy-tethered fishing line that had caught 19 sharks. Moore and Mansell, who worked for a company that specializes in shark encounters, told the Kuehls the catch was "illegal." Based on that assessment, they hauled in the line and freed the sharks, reported the incident to Florida Fish and Wildlife Officer Barry Partelow, and followed his instructions by leaving the fishing gear on the marina dock in Jupiter. But after it turned out that the shark catch had been authorized as part of a research project, both men were convicted of a federal felony, even though the evidence suggested they had made an honest mistake.
President Donald Trump reversed that injustice on Wednesday, when he granted pardons to Moore and Mansell. Unlike many of Trump's clemency decisions, such as his pardons for violent Capitol rioters and corrupt public officials who abused their powers for personal gain, his intervention in this case epitomizes how "the benign prerogative of pardoning," as Alexander Hamilton called it, should be used: to make "exceptions in favor of unfortunate guilt," overriding "cruel" criminal penalties in circumstances that "plead for a mitigation of the rigor of the law."
That certainly seems like an apt description of this case. Kuehl, who documented the shark release with photos that she posted on social media, testified that she "thought we were doing a great thing." That was the impression she got from Moore and Mansell, whose conduct suggests they were sincere in that belief. Assistant U.S. Attorney Tom Watts-FitzGerald nevertheless obtained an indictment that charged them with violating 18 USC 661, which applies to someone who "takes and carries away, with intent to steal or purloin, any personal property of another" within "the special maritime and territorial jurisdiction of the United States."
During their 2023 trial in the Southern District of Florida, Moore and Mansell asked Judge Donald Middlebrooks to instruct the jury that stealing property means wrongfully taking it "with intent to deprive the owner of the use or benefit permanently or temporarily and to convert it to one's own use or the use of another." After the prosecution objected to including a conversion element, Middlebrooks omitted it, although he did tell the jury that the defendants maintained they had "removed property without the bad purpose to disobey or disregard the law and therefore did not act with the intent to steal or purloin."
The jurors, whose deliberations lasted longer than it took to present them with the evidence against Moore and Mansell, evidently were troubled by the facts of the case. They sent the judge several notes before telling him they were unable to reach a verdict. Middlebrooks then gave them an Allen charge, encouraging them to continue deliberating and saying they should be open to changing their positions, provided they could do so "without violating your individual judgment and conscience."
After sending one more note asking whether they should consider any other defense theories, the jurors found Moore and Mansell guilty of one charge each. Although they each faced up to five years in prison, Middlebrooks instead sentenced them to a year of probation. But Moore and Mansell were saddled with felony convictions that triggered lifelong disabilities, including barriers to employment and loss of their Second Amendment rights.
The U.S. Court of Appeals for the 11th Circuit upheld those convictions last September, rejecting Moore and Mansell's objection to the jury instructions. But although the three-judge panel was unanimous in reaching that conclusion, Judge Barbara Lagoa wrote a concurring opinion, joined by Judge Britt Grant, that excoriated Watts-FitzGerald by name for his "imprudent exercise of discretion" in choosing to prosecute Moore and Mansell rather than seeking a civil fine.
Lagoa noted that Moore and Mansell had openly stated their motivation in freeing the sharks, had enlisted their customers to help and to take pictures while doing so, had reported the incident to the relevant law enforcement agency, and had "returned the gear to the marina dock as instructed." Yet "for reasons that defy understanding," Lagoa said, Watts-FitzgGerald "learned of these facts and—taking a page out of Inspector Javert's playbook—brought the matter to a grand jury to secure an indictment for a charge that carried up to five years in prison."
Despite evidence that "plainly suggests a good-faith mistake on Moore and Mansell's part," Lagoa wrote, Watts-FitzGerald "determined that this case was worth the public expense of a criminal prosecution, and the lifelong yokes of felony convictions, rather than imposition of a civil fine." Explaining that decision during oral argument before the 11th Circuit panel last August, the government's lawyer likened the case to car theft on federal property. "If someone steals a car on a military base," she said, "the proper response isn't, well, pay restitution for that. That's a crime." Grant called that "a silly example," adding, "There's no comparison."
In her concurring opinion, Lagoa proposed a different analogy: Suppose "Bob" is walking in a federal park when he encounters a theatrical rehearsal of a fictional crime. Mistaking a man threatening an elderly woman with a prop gun and demanding her purse for an actual robber, Bob comes to her rescue by disarming her apparent assailant. In those circumstances, Lagoa said, it would hardly be just to charge Bob with theft under Section 661, even if his prosecution might hold up according to the letter of the law.
Although Trump's intervention corrected Watts-FitzGerald's defiance of fairness and common sense in prosecuting Moore and Mansell, they still had to endure the expense, inconvenience, anxiety, and embarrassment that ordeal involved. But even at that point, Cato Institute legal fellow Mike Fox argues, three venerable but frequently flouted legal principles should have prevented their convictions.
"At common law," Fox notes in a Washington Examiner essay published last week, "prosecutors had to prove that the defendant intended to commit a crime. This is known as mens rea. Likewise, courts have historically construed ambiguous criminal statutes in the light most favorable to the defendant. This is known as the rule of lenity. In recent years, legislatures and courts have increasingly dispensed with these constraints, leading to the criminalization of totally innocent conduct and the destruction of the lives of well-meaning individuals such as Moore and Mansell."
Trump highlighted the mens rea issue in his recent executive order aimed at restricting federal prosecutions for regulatory crimes. "Many of these regulatory crimes are 'strict liability' offenses, meaning that citizens need not have a guilty mental state to be convicted of a crime," he noted. He instructed prosecutors to focus on cases where the evidence suggests the defendant knowingly broke the law—evidence that was conspicuously missing in the case against Moore and Mansell.
Fox mentions another safeguard that could have helped Moore and Mansell, one that he and his Cato colleague Clark Neily highlighted in a brief they filed in support of the diving instructors' appeal. "Perhaps the single greatest bulwark against unjust convictions and punishments at the founding," Fox writes, "was the institution of jury independence," which included "the power to acquit against the evidence." Historically, "jurors played an important role in assessing the wisdom, fairness, and legitimacy of a given prosecution and could acquit a factually guilty defendant if justice demanded."
Fox suggests "it is highly doubtful that a jury fully cognizant of its historic powers and duties would have branded John Moore and Tanner Mansell as felons for their misguided attempt to fulfill a civic duty." In fact, he says, "it's unlikely" that Watts-FitzGerald "would have charged Moore and Mansell if he had to try the case" before a jury "apprised of its undisputed power to acquit against the evidence" when justice requires it. But because "modern judges have effectively nullified the power to nullify," Fox observes, "good-hearted people such as Moore and Mansell will continue to feel the system's wrath."
Without these safeguards, in other words, such people can avoid the dock only thanks to the prosecutorial discretion that was manifestly misused in this case. And if they are unlucky enough to be targeted by a prosecutor following "Inspector Javert's playbook," their only recourse is the even iffier prospect of a presidential pardon.
