United States v. Izurieta, No. 11–13585.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: RESTANI
• Citation: 710 F.3d 1176
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Yuri IZURIETA, Anneri Izurieta, Defendants–Appellants.
• Docket Number: No. 11–13585.
• Decision Date: 22 February 2013

710 F.3d 1176

UNITED STATES of America, Plaintiff–Appellee,
v.
Yuri IZURIETA, Anneri Izurieta, Defendants–Appellants.

No. 11–13585.

United States Court of Appeals,
Eleventh Circuit.

Feb. 22, 2013.

[710 F.3d 1177]

Jonathan Colan, Lisette Marie Reid, Anne Ruth Schultz, Wifredo A. Ferrer, Jaime A. Raich, Kathleen Mary Salyer, U.S. Attys., Miami, FL, for Plaintiff–Appellee.

Thomas F. Almon, Jr. (Court–Appointed), Law Office of Thomas F. Almon, Jose Rafael Batista (Court–Appointed), Batista & Batista, PA, Miami, FL, for Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Florida.
Before CARNES and COX, Circuit Judges, and RESTANI,^* Judge.

[710 F.3d 1178]

RESTANI, Judge:

Defendants–Appellants Yuri Izurieta and Anneri Izurieta appeal their convictions and sentencing for a conspiracy to unlawfully import goods into the United States in violation of 18 U.S.C. § 545 and 18 U.S.C. § 371. For the following reasons, we vacate the convictions of both of the Izurietas.

BACKGROUND

Anneri and Yuri Izurieta are the founders and officers of Naver Trading Corp., a company that imports cheese, butter, and bread from Central America for distribution in the United States. As part of the U.S. importation regime for food products, all imports are screened upon entry at three distinct stages. First the goods are examined by officials from Customs and Border Protection (“Customs”) for compliance with entry documentation regulations. See19 C.F.R. § 141.86(a). The goods are then approved for entry by the Department of Agriculture. See19 C.F.R. § 12.8. Finally, food products are subject to inspection by the Food and Drug Administration (“FDA”) under the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040 (1938) (codified as amended at 21 U.S.C. §§ 301–399f). To facilitate the importation and storage of covered goods, the FDA and Customs permit importers to take possession of their goods under a conditional release, pending test results or further inspection, provided the goods are securely stored in the importer's warehouse pursuant to “such bond or other security as may be prescribed by [the Secretary of the Treasury]....” 19 U.S.C. § 1499(a)(1). The goods are considered to be on “hold” and may not be distributed until formal authorization for entry into the commerce of the United States is provided by the FDA. 21 U.S.C. § 381. Under the regulations, an importer may be required to make the held goods available for inspection. See19 C.F.R. § 141.113(c); 21 C.F.R. § 1.90. Ultimately, if the goods are found to be adulterated, the FDA may demand under the applicable regulation that the goods be “redelivered” to Customs for exportation or supervised destruction. See21 U.S.C. § 381(a); 19 C.F.R. § 141.113(c).

In this case, the Izurietas and Naver Trading¹ were charged with seven separate counts. Count 1 charged a conspiracy to unlawfully import in violation of 18 U.S.C. § 371. Counts 2–7² charged the Izurietas with the failure “to redeliver, export, and destroy with FDA supervision” five shipments.³ Additionally, Count 3 also charged the Izurietas with failing “to hold and make available for examination” one shipment. The Izurietas were found guilty after a jury trial in which FDA officials and the Izurietas' customs broker testified. The Izurietas appealed their convictions and sentencing based on alleged violations of their Sixth Amendment rights to confront witnesses, improper statements made by the prosecutor over the course of trial, and faulty calculations underlying their sentences.

JURISDICTION

At oral argument, we sua sponte raised the question of whether the indictment (attached to this opinion) underlying the convictions in this case sufficiently charged a crime, thereby conferring subject-matter

[710 F.3d 1179]

jurisdiction on both the district court and this court. In particular, the court questioned whether Counts 2–7, charging the Izurietas with unlawful importation in violation of 18 U.S.C. § 545, sufficiently alleged crimes. The unlawful importation charge in the indictment was based on violations of a Customs regulation, alleging the “failure to deliver, export, and destroy with FDA supervision” certain imported goods found to be adulterated. See19 C.F.R. § 141.113(c). Failure to comply with the regulation typically gives rise to a civil remedy of liquidated damages in the amount of three times the value of the goods. Id. § 141.113(c)(3).

The parties were permitted to file supplemental letter briefs following oral argument on two issues: 1) may the court sua sponte raise the question of the sufficiency of the indictment on appeal, and if so, 2) does the indictment sufficiently allege a crime?

The answer to the first question is clear in light of our previous opinions explaining that a court may raise sua sponte jurisdictional issues up until the issuance of the mandate on direct appeal. See United States v. Elso, 571 F.3d 1163, 1166 (11th Cir.2009); United States v. Seher, 562 F.3d 1344, 1359 (11th Cir.2009). Fed.R.Crim.P. 12(b)(3)(B) permits a court, “at any time while the case is pending ... to hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense.” In Seher, we held that this court is required to raise sua sponte the jurisdictional issue of whether the indictment sufficiently alleges an offense in violation of the laws of the United States provided the mandate has not issued on direct appeal. Seher, 562 F.3d at 1359. The government cites to the unpublished opinion in United States v. Searcy for the proposition that the precise date on which a case is no longer pending for purposes of Fed.R.Crim.P. 12(b)(3)(B) has not been firmly established. See278 Fed.Appx. 979, 981(11th Cir.2008). Unpublished opinions are not binding precedent. See 11th Cir. R. 36–1, IOP 6 (“ Citation to Unpublished Opinions by the Court. The court generally does not cite to its ‘unpublished’ opinions because they are not binding precedent.”). In any event, we draw the line at the issuance of the mandate. Until the mandate issues, the court is required, if it has any doubt about the matter, to determine whether the indictment states an offense.

The government's citation to the Supreme Court's opinion in United States v. Cotton is equally unpersuasive. See535 U.S. 625, 630–31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). In dicta, the Supreme Court in Cotton quoted an older opinion of Justice Holmes explaining that “[t]he objection that the indictment does not charge a crime against the United States goes only to the merits of the case.” Id. (quoting Lamar v. United States, 240 U.S. 60, 65, 36 S.Ct. 255, 60 L.Ed. 526 (1916)). This court's post-Cotton jurisprudence, however, has refused to find that Cotton altered our established precedent recognizing that the failure to allege a crime in violation of the laws of the United States is a jurisdictional defect. United States v. Peter, 310 F.3d 709, 713–14 (11th Cir.2002); see United States v. McIntosh, 704 F.3d 894, 901–03 (11th Cir.2013) (differentiating between jurisdictional and technical defects in indictments). Accordingly, we address the merits of the jurisdictional question.

We have not addressed squarely the second question briefed by the parties, and there appears to be a circuit split on the key question as to what “law” must be violated for importation to be “contrary to law” under the charged statute, 18 U.S.C. § 545. See United States v. Place, 693 F.3d 219, 228–29 n. 12 (1st Cir.2012) (collecting

[710 F.3d 1180]

cases).⁴ Under the smuggling statute:

Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation,⁵ knowing the same to have been imported or brought into the United States contrary to law ... Shall be fined under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 545 (emphasis and footnote added).

Recently, the Ninth Circuit in United States v. Alghazouli adopted a relatively narrow interpretation of the statute. 517 F.3d 1179, 1187 (9th Cir.2008). The court decided that regulations are included within the definition of “law” for purposes of 18 U.S.C. § 545 only “if there is a statute (a ‘law’) that specifies that violation of that regulation is a crime.” Id. (ultimately finding that violation of the charged regulation was criminalized under a section of the Clean Air Act); see alsoUnited States v. Lawson, 377 Fed.Appx. 712, 716 (9th Cir.2010) (finding a violation of regulations related to the Convention on International Trade in Endangered Species punishable under 18 U.S.C. § 545 because violation of the regulations was criminalized under the Endangered Species Act).

The Ninth Circuit arrived at its conclusion by comparing 18 U.S.C. § 545 with 18 U.S.C. § 554. Alghazouli, 517 F.3d at 1187–88. The latter section, which was newly enacted in 2006,⁶ prohibits the fraudulent or knowing exportation from the United States of goods “contrary to any law or regulation of the United States.” 18 U.S.C. § 554 (emphasis added); Alghazouli, 517 F.3d at 1186 n. 3. Applying common principles of statutory construction, the court reasoned that the word “law” in 18 U.S.C. § 554 must not include regulations, otherwise the later mention of regulations would be superfluous. Id. at 1187. The court then imposed this interpretation of “law” in 18 U.S.C. § 554 on the phrase “contrary to law” contained in 18 U.S.C. § 545. Id.

The Ninth Circuit also relied on older Supreme Court precedent which held, “[i]t is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offence....” Id. at 1185 (citing United States v. Eaton, 144 U.S. 677, 688, 12 S.Ct. 764, 36 L.Ed. 591 (1892)). The Supreme Court in Eaton rejected the government's application of criminal...