author: WILLIAM PRYOR, Circuit Judge: JORDAN, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kimberly Smith HASTIE, Defendant-Appellant.
    No. 15-14481
    United States Court of Appeals, Eleventh Circuit.
    (April 25, 2017)

      Adam W. Overstreet, Gregory A. Bor-denkireher, Kenyen Ray Brown, Sinan Ka-layoglu, Lillian Stewart, U.S. Attorney’s Office, Mobile, AL, for Plaintiff-Appellee.
    Neil L. Hanley, Neil Stewart Hanley, Hanley Law Firm, Douglas L. McCoy, John Burruss Riis, Christopher Scott Williams, I, Hand Arendall, LLC, Mobile, AL, for Defendant-Appellant.
    Before WILLIAM PRYOR, JORDAN, and RIPPLE, Circuit Judges.

       Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by designation.

   WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide two issues: first, whether the term “personal information” in the Driver’s Privacy Protection Act, 18 U.S.C. §§ 2721(a), 2725(3), includes email addresses; and second, whether the government presented sufficient evidence for the jury to find that the License Commissioner of Mobile County, Alabama, was an “officer, employee, or contractor” of a “State department of motor vehicles,” id. § 2721(a). During her tenure as License Commissioner of Mobile County, Kimberly Hastie obtained the email addresses of residents of Mobile County from a Commission database. Hastie provided these email addresses to the campaign team for her preferred candidate for mayor of Mobile so that the campaign could send a mass email containing Hastie’s endorsement of the candidate. A jury found Hastie guilty of violating the Driver’s Privacy Protection Act. Because the statutory definition of “personal information” includes email addresses and because sufficient evidence supported the verdict, we affirm.

I. BACKGROUND

Kimberly Hastie served as the License Commissioner of Mobile County. The License Commission issues driver’s licenses and automobile titles and maintains motor vehicle registrations for residents of Mobile County. The License Commission is “a collection and disbursal agency” for taxes and fees related to motor vehicles. The License Commission maintains a website, which requires users to provide their email addresses for all online transactions. The License Commission also instructs tellers at its offices to obtain email addresses from licensed drivers and motor vehicle owners. Both the website and the policy manual of the License Commission include a statement about the Driver’s Privacy Protection Act.

Hastie asked Brad Bray, the manager of information technology, to send emails to addresses in the License Commission’s database communicating Hastie’s endorsement of Sandy Stimpson for mayor. Bray refused because “everybody would know that we just used our E-mail database to send out this list.” Instead, he downloaded a list of email addresses onto a flash drive and delivered it to Hastie’s secretary. Hastie gave the list of email addresses to the Stimpson campaign, and the Stimpson campaign sent out Hastie’s endorsement to those email addresses. When later questioned by the press, Hastie falsely denied that she had released a list of email addresses.

In 2015, a federal grand jury returned a superseding indictment against Hastie on 18 counts. Count 17 charged Hastie with violating the Driver’s Privacy Protection Act by disclosing the email addresses collected by the License Commission to a political consulting firm to tout Hastie’s support for a mayoral candidate. At trial, the district court instructed the jury as follows that the government had to prove beyond a reasonable doubt the following elements for Count 17, including that Hastie worked for a state department of motor vehicles:

The defendant is an officer, employee, or contractor of a state department of motor vehicles; the defendant knowingly disclosed or otherwise made available to any person or entity personal information about an individual; the personal information was obtained by the Department of Motor Vehicles in connection with a motor vehicle record; and the personal information was disclosed for any reason other than a reason where the release of such information is specifically permitted.

Trial Tr. Day 7, 1596:15-23, June 3, 2015 (emphasis added). The district court also defined “personal information” as follows to include email addresses:

The term “personal information” means information that identifies an individual, including an individual’s E-mail address, photographs, Social Security number, driver’s license, name, address, telephone number, medical or disability information. Personal information does not include information on vehicular accidents, driving violations, and a driver’s status.

Id. at 1596:24-1597:5 (emphasis added).

Before the jury returned its verdict, Hastie filed an amended motion for judgment of acquittal. She argued that the statutory definition of “personal information” did not include email addresses and that “the Government has failed to present sufficient evidence from which the jury could find beyond a reasonable doubt that she is an ‘officer, employee, or contractor of a State department of motor vehicles.’ ” The district court denied the motion.

The jury found Hastie guilty of violating the Driver’s Privacy Protection Act and not guilty on all other counts. Hastie filed a renewed motion for judgment of acquittal or, in the alternative, a new trial. The district court denied the motion and sentenced Hastie to pay a fine of $5,000.

II. STANDARDS OF REVIEW

“We review de novo whether there is sufficient evidence in the record to support a jury’s verdict in a criminal trial, viewing the evidence in the light most favorable to the government, and drawing all reasonable factual inferences in favor of the jury’s verdict.” United States v. Jimi-nez, 564 F.3d 1280, 1284 (11th Cir. 2009). “Statutory interpretation is a question of law over which we exercise de novo review.” Boca Ciega Hotel, Inc. v. Bouchard Transp. Co., 51 F.3d 235, 237 (11th Cir. 1995). We also “review jury instructions de novo to determine whether they misstate the law or mislead the jury to the prejudice of the objecting party,” United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992), but we give the district court “wide discretion as to the style and wording employed in the-instructions,” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008).

III. DISCUSSION

The Driver’s Privacy Protection Act prohibits the disclosure of personal information obtained by a state department of motor vehicles except for certain permissible uses, none of which are relevant to this appeal:

(a) A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity:
(1) personal information, as defined in 18 U.S.C. § 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; ...

18 U.S.C. § 2721(a). The Act defines personal information as “information that identifies an individual.” Id. § 2725(3).

We divide our discussion in two parts. First, we explain that sufficient evidence supported the jury’s factual "determination that Hastie was an officer or employee of a State department of motor vehicles. Second, we explain that the definition of “personal information” in section 2725(3) includes email addresses and that the district court did not err in so instructing the jury.

A. The Jury Could Find that the License Commission Is a “State Department of Motor Vehicles.

The government presented sufficient evidence to support the jury’s verdict that Hastie was an “officer, employee, or contractor” of “[a] State department of motor vehicles” under the Act. 18 U.S.C. § 2721(a). As the district court acknowledged, Hastie’s status as an officer or employee of a state department of motor vehicles was “an element of the offense” that needed to be proved to the jury as a “question of fact.” The parties do not contest that Hastie served as the License Commissioner for the Mobile County License Commission. But Hastie argues that the government failed to present enough evidence that the Mobile County License Commission “is in fact a ‘State department of motor vehicles’ ” to sustain a conviction. We disagree..

Specific testimony addressed the relationship between the Mobile County License Commission and the State of Alabama. For example, the jury heard evidence that some of the responsibilities of the License Commission as “a collection and disbursal agency” were defined by statute. The jury also heard testimony that the State oversaw aspects of the License Commission; for example, the state revenue commissioner sometimes played a management role, and the License Commission was subject to state ethics training. And the jury could have found that the Commission determined that it was subject to the Act because it included a statement about the Act on its website and in its policy manual.

The jury could have found that the Mobile County License Commission acts for the State when it performs the traditional tasks associated with a state department of motor vehicles. “[T]he law permits jurors to ‘apply their common knowledge, observations and experiences in the affairs of life.’ ” United States v. Gainey, 111 F.3d 834, 836 (11th Cir. 1997) (quoting United States v. Cruz-Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985) (en banc)). The License Commission issues driver’s licenses and automobile titles and handles motor vehicle registrations for residents of Mobile County, responsibilities commonly known to be within the domain of state departments of motor vehicles. Driver’s licenses and license plates allow drivers to operate their motor vehicles in the State of Alabama and allow individuals to comply with state laws. And the Mobile County License Commission remits fees to the State and implements state laws about vehicle registration. See, e.g., Ala. Code § 32-6-61 (1975) (“All persons who acquire a motor vehicle which is located in this state and required to be registered in this state ... shall reregister the vehicle with the ... county official authorized and required by law to issue license plates.”); § 32-9-3 (“Any ... state or county license inspectors and their deputies ... shall be authorized ... to enforce the provisions of this chapter.”); cf. Ex parte Tuscaloosa Cty., 796 So.2d 1100, 1106 (Ala. 2000) (explaining that under Alabama law, a county official “was acting as an agent of the state for purposes of enforcing the state’s business-license laws”). Hastie collected the personal information of drivers as a prerequisite to these transactions traditionally associated with a department of motor vehicles.

That Alabama does not house all the functions of a traditional department of motor vehicles in one entity does not change this conclusion. Hastie argues that because the government concedes that there is no literal “State department of motor vehicles,” in Alabama (but instead an Alabama Department of Revenue, Motor Vehicle Division), the Act does not apply to her. But the Act does not allow defendants to escape liability because their public employer that issues driver’s licenses and registers motor vehicles is called something other than the “department of motor vehicles.” Because the Mobile County License Commission participates in the state system for vehicle registration and drivers licenses, it does not matter how Alabama labels or organizes that system. “[Vliewing the evidence in the light most favorable to the government” and “drawing all reasonable factual inferences in favor of the jury’s verdict,” Jiminez, 564 F.3d at 1284, the evidence was sufficient for a reasonable jury to have found that Hastie was an employee or officer of a state department of motor vehicles.

B. An Individual’s Email Address is “Personal Information. ”

We begin “where courts should always begin the process of legislative interpretation ... which is with the words of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en bane). The Driver’s Privacy Protection Act defines the term “personal information” as “information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver’s status.” 18 U.S.C. § 2725(3). “Definition sections” in statutes “are to be carefully followed.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 225 (2012); see also Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 79 L.Ed. 780 (1935).

Email addresses fall within the ordinary meaning of “information that identifies an individual.” They can “prove” or “establish the identity of’ an individual. Identify, Webster’s New International Dictionary 1236 (2d ed. 1961). Email addresses often expressly include the account holder’s name, affiliated organization, or other identifying information. With a simple search engine or a service like Spokeo, an email address can also be used to find personal information such as a corresponding username or physical address. The statute does not exclude “monikers created solely for purposes of electronic communication,” as Hastie argues, so long as the moniker identifies an individual.

This interpretation is strengthened by the material similarity between email addresses and the examples in the statute. Because “[associated words bear on one another’s meaning,” Scalia & Garner, supra, at 195, the examples give meaning to the term “personal information.” Email addresses are much like an online version of a physical address or a telephone number: they serve both as a way to find an individual in an online space and as a way to contact a person. Hastie argues that our interpretation is flawed because we “assume[] a person has an e-mail address,” but this argument is backwards. We ask whether an email address identifies an individual, not whether an individual has an email address. And the examples listed in the statute reveal that “information that identifies an individual” does not require that a single piece of information on its own be sufficient to locate a particular individual. An individual might have multiple phone numbers or one, and an address might be associated with one person or many — the ratio does not need to be 1:1. The term “personal information” should be read naturally to include facts that can identify an individual, as opposed to facts that in every instance must identify an individual.

A recent Seventh Circuit opinion supports our interpretation of “personal information.” In a civil action under the Act, the Seventh Circuit held that the definition of “personal information” in the Act included birth date, height, weight, hair color, and eye color. Dahlstrom v. Sun-Times Media, LLC, 777 F.3d 937, 942 (7th Cir. 2015). The court acknowledged that the information “does not uniquely single out a particular person as does, for example, a Social Security number,” but stated that the information still “indisputably aids in ‘identifying]’ them.” Id. at 943. Like a telephone number or a physical address, an email address is “information that identifies an individual.”

The list of examples is not exclusive because it is preceded by the word “including.” Hastie argues that the canon of ex-pressio unius applies to the list of examples in the definition and that we cannot add anything to the statutory definition that Congress has not authorized. But “the word include does not ordinarily introduce an exhaustive list.” Scalia & Garner, supra, at 132, 226. The Supreme Court has repeatedly held that the word “including” in a statute signifies enlargement, not limitation. See,, e.g., Chickasaw Nation v. United States, 534 U.S. 84, 89, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (explaining that “including” “emphasizes the fact that that which is within is meant simply to be illustrative”); Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994) (explaining that terms like “ ‘including’ ... indicate the ‘illustrative and not limitative’ function of the examples”). Because “including” signals a list of examples and not an exclusive definition, interpreting the statute to include email addresses does not “add” anything but instead gives meaning to the definition of “information that identifies an individual.”

If we limited the definition to only the enumerated examples, we would render the express exclusions superfluous. 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.” Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004) (citation omitted); see also Scalia & Garner, supra, at 174. The definition says that it “does not include information on vehicular accidents, driving violations, and driver’s status” and also excludes the 5-digit zip code. 18 U.S.C. § 2725(3). But if the list were limited to the included examples, there would be no need to exclude anything else. The presence of specific exclusions means this statute is not an exception to the general rule that “includes” is not exhaustive.

The word “including” also defeats Hast-ie’s argument that because Congress specifically included email addresses as an example of “personal information” in the Children’s Online Privacy Protection Act, 15 U.S.C. § 6501(8), Congress intended to exclude it from the Driver’s Privacy Protection Act. Although such an absence is persuasive in comparable exclusive definitions, see, e.g., Price v. Time, Inc., 416 F.3d 1327, 1341 (11th Cir. 2005) (comparing the legislature’s use of the word “magazine” as opposed to “newspaper” in other contemporary statutes), the absence loses meaning when comparing non-exclusive lists. Especially because the Children’s Online Privacy Protection Act is about online activities, the use of email addresses there does not speak to the absence of email addresses in the Driver’s Privacy Protection Act.

Nor does the rule of lenity require Hastie’s acquittal. “Ambiguity in a statute defining a crime or imposing a penalty should be resolved in the defendant’s favor,” but “[n]aturally, the rule of lenity has no application when the statute is clear.” Scalia & Garner, supra, at 296, 301. “The rule comes into operation at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.” Callanan v. United States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961). Because the Driver’s Privacy Protection Act is not ambiguous, there is no tie to break in favor of Hastie.

Although Hastie argues that the rule of lenity should apply because she did not know email addresses were covered by the Act, “ignorance of the law is typically no defense to criminal prosecution,” McFadden v. United States, — U.S. —, 135 S.Ct. 2298, 2304, 192 L.Ed.2d 260 (2015). The Act says that a defendant must knowingly disclose (as opposed to negligently misplace) the information, but the Act does not require knowledge that such disclosure is illegal. Cf. id. And in any event, the government offered evidence that Hastie was aware of the prohibition because she attempted to hide the source of the emails and later lied about her behavior. Our construction of the statute is broader than Hastie’s interpretation, but “[t]he mere possibility of articulating a narrower construction ... does not by itself make the rule of lenity applicable,” Smith v. United States, 508 U.S. 223, 239, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993).

The statute is also not “void for vagueness.” The definition of “personal information” is not so vague that it fails to provide fair notice nor does it require state officials to “guess at its contours.” Cf. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). The Seventh Circuit agrees. It held that its interpretation of “personal information” did not “strain the [Act’s] plain meaning” and as a result, was “clear and precise enough to give a person of ordinary intelligence fair notice about what is required of him.” Dahlstrom, 777 F.3d at 946 (quoting Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 835 (7th Cir. 2014)). Hastie was fairly convicted of violating the Act.

Finally, because the district court accurately stated the law, it did not err in instructing the jury that “[t]he term ‘personal information’ means information that identifies an individual, including an individual’s email address.” Although perhaps not “all email addresses are ‘personal information,’” see Dissenting Op. at 1311— 12, the district court accurately stated the law when it said that personal information includes an individual’s email address, in the same way that it includes an individual’s telephone number or physical address. Hastie argues that “[minimally,” the jury should have been allowed to determine whether “personal information” includes email addresses “as a factual question.” But the definition of “personal information” is a matter of statutory interpretation, which makes it a question of law. See United States v. Wilson, 788 F.3d 1298, 1310 (11th Cir. 2015). That Hastie disagrees with our definition of “personal information” does not remove the authority of the district court to instruct the jury on the law.

The dissent correctly states that a district court cannot direct a verdict on an element of the offense, Dissenting Op. at 1308, but the dissent misapprehends the distinction between an instruction that defines an element and one that directs a verdict on that element. In United States v. Goetz, 746 F.2d 705 (11th Cir. 1984), we explained that the district court “correctly ruled that, as a matter of law, alleged tax returns which do not contain any financial information are not ‘returns’ within the meaning of [the statute].” Id. at 707. A definition that stopped there would have been a permissible statement of the law to the jury. United States v. Grote, 632 F.2d 387, 391 (5th Cir. 1980) (holding that a jury instruction providing the same definition of tax returns did not direct the verdict, but “merely instructed the jury, in light of the evidence that had been introduced at trial, how it might find the existence of the second element of the offense charged”). But the district court in Goetz “went on to determine that the documents filed by the defendants did not contain any financial information, and concluded that, as a matter of law, these documents were not returns.” 746 F.2d at 708 (emphases added). The district court “essentially] ... directed a verdict” on that element by conclusively applying the definition to the facts, id., instead of leaving the jury the “responsibility to find the ... element of the offense ... under the charge as given.” Grote, 632 F.2d at 391. We identified the same error in Roe v. United States, 287 F.2d 435 (5th Cir. 1961). The district court “should have told the jury that to convict it must first find that, within the definition of an investment contract given by the Court, these transactions were an investment contract.” Id. at 441 (emphasis added). The instruction that “assignments of oil and gas leases coupled with collateral agreements ... are investment contracts” was permissible, but the instruction that “the investment contracts described in the first count of this indictment come within the definition” was not. Id. at 440 n.8 (emphasis added). The Fifth Circuit has since explained that “[i]t is the judge’s duty to instruct the jury concerning th[e] definition [of a security]” and “[o]f course, the question whether a generic type of document, such as a traveler’s check or an equipment lease, may come within the reach of the statute’s prohibition is one of law,” but “[w]hether a particular piece of paper meets that definition ... is for the jury to decide.” United States v. Johnson, 718 F.2d 1317, 1321 n.13 (5th Cir. 1983) (en banc). Our dissenting colleague rejects our reading of these decisions, but fails to explain how they do not make the very distinctions explained above.

The district court would have erred if it had instructed the jury that the emails provided by Ms. Hastie constitute “personal information,” but the district court did not do so. The district court instead provided the jury a definition at a higher level of generality when it explained that “ ‘personal information’ means information that identifies an individual, including an individual’s E-mail address.” Trial Tr. Day 7, 1596:24-1597:5, June 3, 2015. The dissent asserts that these two instructions are “qualitatively the same,” Dissenting Op. at 1311, but our precedents maintain that they are materially and legally different, see Grote, 632 F.2d at 391. Because a district court may instruct a jury that a generic kind of document is not a return, see Goetz, 746 F.2d at 707-08, and that a generic kind of transaction is an investment contract, see Roe, 287 F.2d at 441, the district court did not err in instructing the jury that a generic identifier (a personal email address) is personal information. The district court did not “appl[y] the facts to the law, leaving nothing for the jury to determine,” Goetz, 746 F.2d at 709, because the jury was still responsible for deciding whether Hastie shared information that met that legal definition. It is irrelevant that this particular decision was simple; the jury applies the law to the facts “no matter how overwhelming the evidence.” Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

Contrary to the dissent’s assertion, Dissenting Op. at 1311-12, our ruling also does not conflict with the decision to allow the jury to decide whether Hastie was an “officer” or “employee” of a “State department of motor vehicles,” 18 U.S.C. § 2721(a). In its discretion, the district court perhaps could have defined that statutory language to include county officials who act on behalf of the state, but the district court could not have determined that Hastie was such an officer without running afoul of the Sixth Amendment. Although there may arise situations where a purported “definition” is incorrect or so specific that it essentially directs the verdict, that problem is not present here. Because the generic definition of “personal information” given by the district court accurately stated the law, the district court did not err in its instructions to the jury.

IV. CONCLUSION

We AFFIRM Hastie’s judgment of conviction.

JORDAN, Circuit Judge,

concurring in part and dissenting in part.

My only disagreement with the majority opinion concerns the Sixth Amendment claim. But that disagreement is a significant one.

The government accused Kimberly Smith Hastie of disclosing the “personal information” of Mobile County residents in violation of the Driver’s Privacy Protection Act, 18 U.S.C. § 2721(a)(1), by providing their email addresses to the political campaign of a candidate she wanted to endorse. Because email addresses are not included in the DPPA’s definition of “personal information,” see 18 U.S.C. § 2725(3) (defining “personal information” as “information that identifies an individual,” and providing various examples), Ms. Hastie asked the district court to give the jury the statutory definition of “personal information” and allow it to decide whether email addresses constitute “information that identifies an individual.” See D.E. 294 at 136-37. The district court refused, and instead told the jury that, as a matter of law, the term “personal information” includes email addresses. See D.E. 295 at 129-30.

That, in my view, was reversible constitutional error. It is undisputed that the disclosure of “personal information” is an element of a DPPA offense, and the Sixth Amendment and the Due Process Clause require that “each element of a crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013). As a result, the jury should have been allowed to decide whether the email addresses provided by Ms. Hastie constitute “personal information.”

I

The majority holds that the district court did not err in instructing the jury that the term “personal information” includes email addresses because the definition of “personal information” is a matter .of statutory interpretation. See Maj. Op. at 1305-06. Although it is true that the construction of a statutory term is for a court to resolve, the majority’s rationale is too simplistic and does not account for Eleventh Circuit precedent.

The only case affirmatively cited by the majority, United States v. Wilson, 788 F.3d 1298, 1310 (11th Cir. 2015), did not involve a Sixth Amendment claim that the district court, through its instructions, took from the jury an issue relating to an element of the offense. Wilson addressed a sufficiency of the evidence claim, and it was in that context (and only in that context) that the panel engaged in statutory interpretation to determine whether the evidence presented by the government sufficed. The defendant’s conviction for aggravated identity theft was premised on evidence that the names of victims were on tax refund checks, and we had to determine whether those names, together with forged signatures, constituted a “means of identification” under 18 U.S.C. § 1028A. See Wilson, 788 F.3d at 1310. Our closing comments made it clear that we were conducting post-trial sufficiency review, and nothing more. See id. at 1311 (“Here, the United States Treasury checks were made payable to six individuals and were endorsed with those individuals’ forged signatures. This evidence was sufficient to constitute a ‘means of identification’ to identify a specific individual under the statute.”) (emphasis added).

II

A criminal conviction must “rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). That means that a district court cannot — no matter how overwhelming (or undisputed) the evidence — direct a verdict by deciding a contested issue on an element of the charged offense. See Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (explaining that the Sixth Amendment right to trial by jury “includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty’ ”).

The district court here, through its jury instructions, altered Congress’ definition under § 2725(3) and prevented the jury from deciding a critical issue: whether the email addresses provided by Ms. Hastie constitute “personal information” under the DPPA. And that, I believe, violated the Sixth Amendment. See, e.g., Mims v. United States, 375 F.2d 135, 148 (5th Cir. 1967) (“An instruction deciding a material fact issue as a matter of law adversely to the accused is regarded as a partial instructed verdict of guilty [that is] prohibited.”).

A

Whether email addresses are “personal information” may properly be characterized as a mixed question of law and fact. But juries in criminal cases also get to decide mixed questions when they concern an element of the offense at issue. See Gaudin, 515 U.S. at 510-15, 115 S.Ct. 2310 (holding that the question of “materiality,” in a false statement prosecution under 18 U.S.C. § 1001, must be submitted to the jury even though it is a mixed question of law and fact). After all, “the jury’s constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence.” Id. at 514, 115 S.Ct. 2310. See also Sparf v. United, States, 156 U.S. 51, 106, 15 S.Ct. 273, 39 L.Ed. 343 (1895) (“the jury [is] to apply the law as ... declared to the facts as ascertained by them”).

If the government presents evidence X at trial to establish an element of the offense, and the defendant on appeal argues that evidence X is insufficient to support his conviction, a reviewing court has to determine whether evidence X satisfies the statutory element, and that analysis may entail interpretation of a term in the statute. That is the sort of sufficiency analysis we conducted in Wilson, 788 F.3d at 1310-11, and in many other cases like it. See, e.g., United States v. Ross, 458 F.2d 1144, 1145-46 (5th Cir. 1972). But the need to construe a statute on appeal to conduct sufficiency review is not a license for a district court to tell the jury at trial that evidence X, as a matter of law, satisfies the contested statutory element. The “jury’s duty to apply the law to the facts ... implies the application of a general standard to the specific ... facts as found by the jury.” Holland v. United States, 348 U.S. 121, 141, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

One of our cases, United States v. Goetz, 746 F.2d 705 (11th Cir. 1984), properly illustrates these principles. Goetz involved a prosecution under 26 U.S.C. § 7203 for willful failure to file federal income tax returns. Because one of the elements of a § 7203 offense is the failure to file a return, the defendants wanted the jury to decide whether certain documents they had submitted to the IRS — tax forms containing the words “object self incrimination” in each space requesting income information — constituted “returns.” See id. at 707. The district court ruled, as a matter of law, that the documents were not “returns” within the meaning of § 7203, and so instructed the jury. See id. The jury found the defendants guilty, but we reversed their convictions on appeal.

Although we agreed with the district court that the documents submitted by the defendants were not “returns” as a matter of law (so that the defendants could be properly convicted under § 7203 if the jury credited the government’s evidence), we held that the jury should have been allowed to decide, in the first instance, whether the forms the defendants submitted were “returns”:

The [district] court correctly ruled that, as a matter of law, alleged tax returns which do not contain any financial information are not ‘returns’ within the meaning of [§ ] 7203. The court, however, went on to determine that the documents filed by the defendants did not contain any financial information, and concluded that, as a matter of law, these documents were not returns. In doing so, the lower court applied facts to the law, thus invading the province of the jury. In essence, the court directed a verdict as to one of the three elements of the alleged offense: failure to file a return.

Id. at 707-08. See also id. at 709-10 (“[T]he [district court] applied the facts to the law, leaving nothing for the jury to determine.... We conclude that there was reversible error in directing the jury that the documents filed by the defendants were not returns.”).

Another of our cases, Roe v. United States, 287 F.2d 435 (5th Cir. 1961), is in line with Goetz. The defendant in Roe was convicted of selling and delivering securities without prior registration with the Securities and Exchange Commission. The district court instructed the jury that certain oil leases sold by the defendant were “investment contracts,” and therefore “securities,” within the meaning of the federal statute at issue. See id. at 437-38. We agreed with the district court that the leases, if proven, were “securities” under federal law, but held that the district court’s instruction constituted reversible error:

Thus we determine that, as a matter of law, the evidence of these transactions, if credited, would constitute the sale or delivery of an “investment contract,” hence a “security” thereby requiring registration with the SEC. But the if in “if credited” is a big one. By its very nature, it is the peculiar facts of the setting which turns the offer from a mere sale of property into a sale of a security. That means that the trier of fact, here a jury, must determine the issue.... [N]o fact, not even an undisputed fact, may be determined by the [jjudge. The plea of not guilty puts all in .issue, even the most patent truths. In our federal system, the [t]rial [cjourt may never instruct a verdict either in whole or in part.

Id. at 440.

In my view, Goetz and Roe require that we grant Ms. Hastie a new trial. Telling a jury that all email addresses categorically constitute “personal information” (what happened here) is no different than telling a jury that certain documents filed with the IRS do not constitute “returns” (what happened in Goetz) or that certain oil leases constitute “investment contracts” and, therefore, “securities” (what happened in Roe). See also Carothers v. United States, 161 F.2d 718, 722 (5th Cir. 1947) (holding, in a prosecution for selling services at prices above a ceiling set by a federal official, that the district court improperly instructed the jury as to what the ceiling price was: “This assumption, that the [ceiling] price had been established as matter of law at less than the price the indictment charged [the] defendant with receiving, put the [court] in the position of deciding a fact issue material to [the] defendant’s conviction, instead of submitting it to the jury for its determination, and thus deprived the defendant of his constitutional right of trial by jury.”); Brooks v. United States, 240 F.2d 905, 906 (5th Cir. 1957) (ruling, in a prosecution for perjury based on alleged false statements made under oath to an IRS agent, that the district court committed plain error in instructing the jury that the IRS agent in question was authorized to administer oaths under federal law: “[The instruction] deprived the jury of its function of determining whether or not ... they believed beyond a reasonable doubt that [the agent] was an officer authorized to administer oaths in 1955 and thus violated appellants’ constitutional right to a trial by jury as guaranteed by the Sixth Amendment.”); Mims, 375 F.2d at 147-48 (concluding, in a prosecution for attempted bank robbery, that the district court committed plain error in instructing the jury that the evidence showed an attempt as a matter of law).

B

The majority says that Ms. Hastie’s situation is distinguishable from Goetz and Roe because the district court here simply-provided a definition of “personal information” at a “higher level of generality” that encompassed email addresses, rather than instructing the jury that “the emails 'provided, by Ms. Hastie constitute ‘personal information.’ ” See Maj. Op. at 1306. I disagree.

The district court not only gave the jury a generic definition of “personal information” — “information that identifies an individual,” D.E. 295 at 129 — but it also told the jury in no uncertain terms that email addresses — the very things Ms. Hastie was accused of distributing — categorically constituted “personal information.” Because we “generally presume that jurors follow their instructions,” Penry v. Johnson, 532 U.S. 782, 799, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001), the jury here was left with “nothing ... to determine,” Goetz, 746 F.2d at 709, when it came to applying the law (the definition of “personal information”) to the facts (the email addresses in question).

“What [a court] is forbidden to do directly, [it] may not do by indirection.” Horning v. District of Columbia, 254 U.S. 135, 139, 41 S.Ct. 53, 65 L.Ed. 185 (1920) (Brandéis, J., dissenting). Telling the jury, without any limitation or room for debate, that email addresses constitute “personal information” as a matter of law is qualitatively the same as instructing the jury that the email addresses distributed by Ms. Hastie constitute “personal information.” In other words, if all email addresses are “personal information,” then the email addresses provided by Ms. Hastie necessarily are “personal information” too.

Notably, the district court here let the jury decide whether Ms. Hastie — the Mobile County License Commissioner — was an “officer” or “employee” of a “State department of motor vehicles” under § 2721(a)(1). See D.E. 295 at 129. If the jury was allowed to decide that issue, which went to a different element of the DPPA offense, how could it be precluded from deciding whether email addresses constitute “personal information” under § 2725(3)? I cannot think of a good reason, much less a valid constitutional one.

III

A criminal conviction for a violation of the DPPA is punishable only by a fine, see § 2723(a), so ih a sense this might be seen as a small and insignificant case. But it is nothing of the sort, because it raises an important constitutional question that could have far-reaching consequences in future criminal trials.

As I read Sixth Amendment precedent, the district court violated Ms. Hastie’s rights by instructing the jury, as a matter of law, that the “personal information” element of a § 2721(a)(1) offense categorically includes email addresses. I would grant Ms. Hastie a new trial, and therefore respectfully dissent from the majority’s affir-mance of her DPPA conviction.

      . For similar cases from other circuits, see, e.g., United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir. 1986) (holding that the district court "invaded the jury's domain by declaring in [its] instructions to the jury that, as a matter of law, the [Cheyenne River Sioux Tribe] Telephone Authority constituted an Indian tribal organization under 18 U.S.C. § 1163”); United States v. Mentz, 840 F.2d 315, 320 (6th Cir. 1988) ("We agree with Menz that the [district court] invaded the jury’s province by instructing that body, in clear and unequivocal language, that the banks were FDIC insured at the time the robberies occurred.”); United States v. Johnson, 718 F.2d 1317, 1318 (5th Cir. 1983) (en banc) (ruling that the district court erred in instructing the jury that a particular document was a “security” as a matter of law, because "it is the jury’s exclusive province to apply the law to the facts and determine whether the document is a security”). There is one unpublished case that employs the majority's rationale, but that case — like the majority here — does not cite any Sixth Amendment precedent to support its ruling. See United States v. Franklin, 298 Fed.Appx. 477, 478-79 (6th Cir. 2008) (holding, in a prosecution for knowingly using a destructive device in furtherance of a crime of violence, that the district court did not err in instructing the jury "that, as a matter of law, a Molotov cocktail is a ‘destructive device’ ”). Cf. United States v. Grote, 632 F.2d 387, 391 (5th Cir. 1980) (approving instruction telling the jury that "a taxpayer’s return which does not contain financial information, enabling the [IRS] to determine the party’s tax liability, if any, is not a return”).

      . In a way, the district court's instruction acted as a mandatory inference, which is also constitutionally problematic. See, e.g., United States v. U.S. Gypsum Co., 438 U.S. 422, 446, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978) (explaining how a mandatory inference “invade[s] [the jury’s] factfinding function”); United States v. Cochran, 683 F.3d 1314, 1320 (11th Cir. 2012) ("we disapprove of a jury instruction that invades the jury's province by implicitly mandating an inference”).

      . I recognize that the constitutional violation here is subject to harmless-error review, but the government has the burden of demonstrating harmlessness beyond a reasonable doubt, and it has not even tried to make such a showing. See generally Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The jury, moreover, asked the district court whether it had to follow the definition of "personal information” found in the DPPA or the definition set forth in the jury instructions. See D.E. 295 at 137-38; D.E. 302-4 at 3, 5. Given that query, it is not at all clear that the government could show that the Sixth Amendment error is harmless.


source: Caselaw Access Project

author: BARTLE, District Judge: JILL PRYOR, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James S. DORAN, Defendant-Appellant.
    No. 16-10927
    United States Court of Appeals, Eleventh Circuit.
    (April 26, 2017)

      Jason R. Coody, Pamela C. Marsh, Gary Kenneth Milligan, II, U.S. Attorney’s Office, Tallahassee, FL, Lennard B. Register, III, Robert G. Davies, U.S. Attorney’s Office, Pensacola, FL, for Plaintiff-Appel-lee.
    Merritt Ellen McAlister, Billie Barker Pritchard, King & Spalding, LLP, Atlanta, GA, Ryan Robert Davis, R. Timothy Jansen, R. Timothy Jansen, PA, Tallahassee, FL, for Defendan1>-Appellant.
    Before WILSON and JILL PRYOR, Circuit Judges, and BARTLE, District Judge.

       Honorable Harvey Bartle III, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

   BARTLE, District Judge:

This is the appeal of Dr. James S. Doran who was convicted under 18 U.S.C. § 666 of embezzlement from Florida State University (“FSU”), an organization receiving federal funds. He argues that he is entitled to a judgment of acquittal. Doran maintains, among other grounds, that any embezzlement was not from FSU and that the Government did not prove that the victimized organization under the statute was a recipient of federal benefits. The Court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291. The Court’s review of the District Court’s denial of a judgment of acquittal is de novo. See United States v. Yates, 438 F.3d 1307, 1311-12 (11th Cir. 2006) (en banc).

Section 666 provides in relevant part:

(a) Whoever, if the circumstances described in subsection (b) of this section exists—
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that—
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency;
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.

See § 666.

We' turn to the facts related to the embezzlement which we view in the light most favorable to the Government, the verdict winner. See United States v. McLean, 802 F.3d 1228, 1233 (11th Cir. 2015). Doran was a professor in the College of Business of FSU. He was also a director and officer of the Student Investment Fund (“SIF”), a non-profit corporation established by FSU for charitable and educational purposes, and had signatory authority over the SIF’s bank account.

In 2010, Doran transferred $300,000 of the SIF funds to his own personal account. In anticipation of an audit of the SIF, he returned the money a few months later. In 2011, he again moved money, this time $350,000, from the SIF to his personal account. After the SIF board members discovered this transfer, he repaid the amount in full. In 2010, he had also written a SIF check for $10,000 to cover an audit of his personal account. Only as a result of an investigation and after he was confronted in 2012 did he repay the $10,000 to the SIF.

The SIF was established by FSU under Florida law in 2009. The objective of the SIF, as characterized in a FSU College of Business document, was to “enrich student education through active participation in financial markets. Students assist in stock selection and management of a real portfolio.” The SIF began with approximately $300,000 donated by private sources. The FSU Foundation later added $1,000,000. The Foundation’s funds came from private donors and not from FSU.

The SIF’s Board of Directors consisted of seven directors. They included the Chair of the FSU Board of Trustees, the FSU President, and the FSU Vice President for Finance and Administration or their desig-nees, as well as the Dean of the FSU College of Business, two FSU College of Business faculty members, and a member selected by the FSU President “with significant and substantial investment experience and expertise.” The SIF maintained its own bank account, filed its own tax forms, and paid for its own audits. It tunneled no money to FSU, and FSU tunneled no money to it. Under its Articles of Incorporation, the SIF had no power “to convey, lease, pledge, or otherwise encumber assets of the State of Florida” and “The Florida State University Board of Trustees and The Florida State University assume[d] no financial liability for the [SIF].”

Although the evidence established that Doran had embezzled funds from the SIF, the indictment made no mention of the SIF. Rather, the indictment’s one count charged that Doran had embezzled or stolen property of FSU, which it described as the recipient of federal benefits.

Doran argues that his conviction must be overturned because the SIF was the victimized organization under § 666 but received no federal benefits. In Doran’s view, the SIF and FSU are separate entities. The Government concedes the point that the SIF was not the recipient of any federal funds. Nonetheless it counters that the embezzlement by Doran comes within the ambit of § 666 because the SIF was closely affiliated with FSU which did receive millions of federal dollars and that Doran, an FSU professor, was acting as an agent of FSU when he committed the crime in issue.

To sustain a conviction under § 666, the Government must prove among other elements that the organization which was victimized received federal benefits in excess of $10,000. The relevant organization under the statute is the SIF since it was the organization that was the subject of the embezzlement. The Government is mistaken in focusing on FSU as the victimized organization and in conflating FSU and the SIF. Despite the affiliation of FSU and the SIF, there is simply no evidence in the record that FSU and the SIF are alter egos so as to allow the Court to pierce the SIF’s corporate veil and to treat FSU and the SIF as one and the same. See Molinos Valle Del Cibao v. Lama, C. por A., 633 F.3d 1330, 1349-51 (11th Cir. 2011); Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1116 (Fla. 1984).

This Court’s decision in McLean is dis-positive. There, the defendant, David McLean, was charged under § 666 with accepting bribes in return for helping to obtain for the provider of the bribe a construction grant from the Margate Community Redevelopment Agency (“MCRA”). See McLean, 802 F.3d at 1231. McLean was a commissioner for the City of Mar-gate as well as a board member of the MCRA. The members of the City Commission and the MCRA Board were the same. While the MCRA was a separate legal entity, “the City was financially accountable for the MCRA and the MCRA is part of the government’s operations.” See id. at 1241.

The City received federal funds directly from the federal government, but the MCRA did not. The City, however, transferred some of its federal funds to the MCRA. For an organization such as the MCRA to be deemed the recipient of federal benefits under § 666, the Government must prove that the federal program had “a sufficiently comprehensive ‘structure, operation, and purpose’ ” and a relationship with “the ultimate use of [the program’s] funds at the local level.” See id. at 1243-44 (quoting United States v. Edgar, 304 F.3d 1320, 1325 (11th Cir. 2002)); Fischer v. United States, 529 U.S. 667, 681, 120 S.Ct. 1780, 1788, 146 L.Ed.2d 707 (2000). This Court affirmed the District Court’s entry of a judgment of acquittal on the ground that there was insufficient evidence that the MCRA had received a federal benefit as defined in Fischer and Edgar. See McLean, 802 F.3d at 1244.

McLean identified the MCRA as the relevant local organization under § 666 and not the City. It was the MCRA and not the City which was connected to the bribe at issue. Likewise, here it was the SIF and not FSU that was the target of the embezzlement. In McLean, where the governing board of the City and the MCRA were the same, the City and the MCRA had an even closer relationship than had FSU and the SIF. Yet, this Court did not conflate the City and the MCRA. The two affiliated entities in McLean were not alter egos and the two affiliated entities here were not alter egos. Moreover, the Court in McLean did not consider significant in its analysis the federal funds retained by the City for its own use. While in McLean the MCRA received some federal funds indirectly, the SIF, it must be emphasized, received no federal funding, directly or indirectly. Thus, there were no federal funds “owned by, or [] under the care, custody, or control of’ the SIF. See § 666(a)(l)(A)(ii).

The Government also argues that Do-ran’s conviction should be upheld because he was an agent of FSU. This argument fails. Again, we reference McLean. In that case, this Court did not deem defendant McLean’s role as one of the City’s commissioners to be relevant under § 666. With respect to charges under § 666, McLean was simply acting as an agent of the MCRA even though City funds had been transferred to the MCRA. In this case, Doran was a director and officer and thus an agent of the SIF. His employment as a professor at FSU was irrelevant inasmuch as he did not embezzle any FSU funds. Thus, any agency relationship he had with FSU is of no moment.

We acknowledge that § 666 is “expansive.” See Fischer, 529 U.S. at 678, 120 S.Ct. 1780. Yet, its net cannot be cast so widely as to encompass the wrongdoing that occurred here, for the Government has not demonstrated any federal interest. The Supreme Court cautioned that not “all recipient fraud” is covered under § 666. See id. at 681, 120 S.Ct. 1780. As it explained, the meaning of the term “benefits” in the statute should not be interpreted as “limitless.” See id. “Doing so would turn almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance.” Id.

Doran has raised a number of additional grounds for reversal. For example, he questions whether the Government has proven that the federal funds FSU received were part of any program with a sufficiently comprehensive structure, operation, or purpose to meet the requirement under § 666(b) as a federal benefit. See id. In light of our above analysis, we need not reach this or any other issue.

In sum, the Government has not proven that the relevant local organization, the SIF, received any federal benefits. See § 666(b). As a result, Doran’s conviction under § 666 cannot stand.

We reverse the judgment of conviction and direct the District Court to enter a judgment of acquittal.

REVERSED AND REMANDED.

JILL PRYOR, Circuit Judge,

concurring in the judgment:

I agree with my colleagues that Doran’s conviction cannot stand. I reach that conclusion by a different route, however. In a prosecution under 18 U.S.C. § 666, the government must, in addition to proving the criminal conduct (embezzling, stealing, obtaining by fraud, or converting property), identify the relevant organization to which the statute refers and prove that it received over $10,000 in qualifying federal benefits “in any one year period.” 18 U.S.C. § 666(b). As I read § 666, the relevant organization here is Florida State University (“FSU”), the organization that employed Doran, not the Student Investment Fund (the “SIF”), the student organization he advised that was the victim of his embezzlement. As such, the government needed to prove beyond a reasonable doubt that FSU — not the SIF — received over $10,000 in qualifying federal benefits during the relevant period. The government failed, however, to introduce evidence on this point sufficient to support a jury verdict. Accordingly, I agree with the majority that we must vacate Doran’s conviction.

I. The Meaning of 18 U.S.C. § 666

Doran argues, and the majority agrees, that the government needed to prove that the SIF, as the victim organization, received over $10,000 in qualifying federal benefits during the relevant period. In my view, however, 18 U.S.C. § 666 imposes no such requirement. Instead, it requires that FSU, the organization Doran served as an agent (as opposed to the SIF), received such benefits.

My analysis of § 666’s meaning begins with its text. See Bodine v. Cook’s Pest Control Inc., 830 F.3d 1320, 1329 (11th Cir. 2016) (“ ‘Our inquiry begins with the statutory text, and ends there as well if the text is unambiguous’ ” (alteration omitted) (quoting BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (plurality opinion))). The statute provides, in relevant part:

(a) Whoever, if the circumstance described in subsection (b) of this section exists—
(1) being an agent of an organization
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that—
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization ...
shall be fined under this title, imprisoned not more than 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.

18 U.S.C. § 666(a), (b). The statute defines an “agent” as “a person authorized to act on behalf of another person or a government and, in the case of an organization ... includes a[n] ... employee.” Id. § 666(d)(1).

Under § 666’s plain language, to secure Doran’s conviction the government needed to prove beyond a reasonable doubt that he was “an agent of an organization” and' that he (in this case) “embezzlefd] ... property that ... [wa]s under the care, custody, or control of such organization,” id. § 666(a)(l)(A)(ii) (emphasis added); that is, the organization of which Doran was an agent. Section 666 further required the government to prove that “the organization ... receive[d] ... benefits in excess of $10,000 under a Federal program.” Id. § 666(b) (emphasis added). Although the property that Doran was charged with embezzling was required to be “under the care, custody, or control of’ the organization that employed him, id. nothing in the statute required the government to prove that the victim of Doran’s embezzlement received any federal benefits at all. Because the text of § 666 is unambiguous, we need not go further to interpret the statute.

In the paradigmatic prosecution under § 666, in which a defendant is charged with embezzling, stealing, obtaining by fraud, or converting his employer’s property, the conceptual distinction between the defendant’s victim and the organization he serves as an agent would be of no moment. Suppose, for example, that a doctor embezzles money from her employer, a hospital that receives federal benefits. In this example, the hospital is both the doctor’s employer and her victim. And so it likely is in most prosecutions under § 666.

But what if a defendant who works for Organization A steals funds owned by another organization, Organization B? By permitting the government to charge a violation where the ill-gotten property either “is owned by, or is under the care, custody, or control” of the defendant’s employer, § 666 contemplates that the employer may not always be the property’s ultimate owner. Id. § 666(a)(l)(A)(ii) (emphasis added). In this admittedly unusual scenario, to secure a conviction the government would need to prove that Organization A, not Organization B, received the requisite amount of federal benefits. That is because “the organization” that § 666 requires to have “receive[d] ... benefits in excess of $10,000 under a Federal program” is the organization that the defendant served as “an agent.” Id. § 666(a)(1), (b).

This is not to say that the defendant’s victim may lack any connection to the federal benefits whatsoever — the government must still prove that the ill-gotten property of the victim was in the employer organization’s “care, custody, or control.” Id. § 666(a)(l)(A)(ii). Although this Court has not previously construed § 666’s “care, custody, or control” element, the term plainly requires that the employer organization had responsibility for or control over the embezzled property, though not that it owned the property itself. Thus, although § 666 does not require the victim itself to have received federal benefits, it does require at a minimum that the victim’s property be in the “care, custody, or control” of an organization that received over $10,000 in such benefits during the relevant period in order for the defendant’s conduct to constitute a federal offense. Id. This requirement limits § 666’s application “to conduct bearing a sufficient connection to the expenditure of federal funds or the integrity of federal programs.” United States v. Edgar, 304 F.3d 1320, 1325 (11th Cir. 2002).

Once it has identified the organization that the defendant served as an agent, what must the government show to prove that the organization “receive[d], in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance”? 18 U.S.C. § 666(b). In Edgar, we construed this provision to require proof that the federal programs that disbursed funds to the predicate organization are “defined by a sufficiently comprehensive ‘structure, operation, and purpose’ to merit characterization of the funds as benefits under § 666(b).” 304 F.3d at 1327 (quoting Fischer v. United States, 529 U.S. 667, 681, 120 S.Ct. 1780, 146 L.Ed.2d 707 (2000)). “The inquiry should examine the conditions under which the organization receives the federal payments.” Fischer, 529 U.S. at 681, 120 S.Ct. 1780. We elaborated on this construction of § 666(b) in United States v. McLean, holding that to sustain' a § 666 conviction, the government must “show a relationship between the structure, operation, and purpose of the federal scheme authorizing the distribution of funds and their ultimate use at the relevant local level.” 802 F.Sd 1228, 1244 (11th Cir. 2015) (internal quotation marks omitted).

To summarize, § 666 requires the government to prove, in addition to the defendant’s underlying criminal conduct, that (1) the defendant served as an agent of an organization (2) that had “care, custody, or control” of the property that the defendant misappropriated, 18 U.S.C. § 666(a)(l)(A)(ii), and (3) that received, during a one year period, over $10,000 in federal funds that were disbursed through programs whose “structure, operation, and purpose” are sufficiently cohesive to warrant the funds’ characterization as “benefits.” Edgar, 304 F.3d at 1327 (internal quotation marks omitted).

II. Doran’s Challenge to the Sufficiency of the Evidence

Although the majority arrives at the correct outcome in this case, I would reach it differently. Applying § 666, as I read it, to the facts of this case, I would reverse Doran’s conviction on the sole ground that the evidence at trial was insufficient to prove to a reasonable jury beyond a reasonable doubt that FSU received the requisite amount of federal benefits during the relevant period under 18 U.S.C. § 666(b). See United States v. Pineiro, 389 F.3d 1359, 1367 (11th Cir. 2004). The government’s evidence on this issue simply does not satisfy Edgar's robust standard.

A. Element (1): Proof that Doran was an Agent of FSU

To secure Doran’s conviction under § 666, the government needed to identify the relevant organization that Doran served as an agent. Here, that organization is FSU — Doran was indicted and convicted as an “an agent of Florida State University” (Docs. 1 at 1; 49; 50). It is undisputed that Doran was “an agent of’ FSU at the time he embezzled the SIF’s funds. 18 U.S.C. § 666(a)(1).

Citing McLean, Doran argues that the SIF, not FSU, is the relevant organization for purposes of our § 666 analysis, because the funds he embezzled from the SIF neither belonged to nor flowed from FSU. In my view, McLean does not support his argument.

McLean served simultaneously as a Commissioner for the City of Margate, Florida and on the board of the Margate Community Redevelopment Agency (“MCRA”), a municipal economic development agency. Id. at 1232. In the latter capacity, McLean solicited bribes from a local businessman with the promise of steering MCRA funds the businessman’s way through a fraudulent construction grant application. Id. at 1232-33. The FBI uncovered the scheme, and McLean was indicted on two counts of bribery in programs receiving federal funds as “an agent of [the City of] Margate,” in violation of § 666. Id. at 1231-32. The district court’s jury instructions explained, however, that to convict McLean on those counts, the jury would need to find “that during the one-year period ... the [MCRA] received benefits in excess of $10,000 under a federal program involving some form of federal assistance.” Id. at 1245. The jury convicted McLean on both counts, id. at 1240, 1243, and by the time the case reached our Court, the government had conceded that the MCRA, not the City of Margate, was “the relevant local level” for our analysis of the federal benefits element. See id. at 1234, 1244 (“The government asserts that, viewing the evidence in the light most favorable to the government, the United States sufficiently established that the MCRA received federal benefits in excess of $10,000.”). In doing so, the government effectively conceded that the MCRA was the relevant organization.

In reviewing McLean’s convictions on appeal, we decided the only question the parties put to us, which was whether the evidence at trial sufficed to prove that the MCRA had received over $10,000 in funds from “programs defined by a sufficiently comprehensive structure, operation, and purpose to merit [their] characterization ... as benefits.” Id. at 1231 (internal quotation marks omitted). In looking at the sufficiency of the evidence, we followed the parties in identifying the MCRA, rather than the City of Margate, as “the relevant local level” for conducting our § 666 analysis. Id. at 1244. But we never considered which organization — the MCRA or the City of Margate — was in fact the relevant organization for the purposes of our analysis, as the parties did not brief or argue that issue on appeal. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (internal quotation marks omitted)).

As such, I do not read McLean as requiring the government to prove that the SIF is the relevant organization for our § 666 analysis. To convict Doran, the government needed to prove that Doran was an agent of FSU and that FSU had “care, custody, or control” over the embezzled funds and received over $10,000 in federal benefits during the relevant period. 18 U.S.C. § 666(a)(l)(A)(ii), (b). Doran does not challenge the sufficiency of the government’s proof of the first element. We discuss the other two elements below.

B. Element (2): Proof that FSU Had Care, Custody, or Control Over the Funds that Doran Embezzled

Having correctly identified FSU as the relevant organization under § 666, the government was required to prove that FSU exercised “care, custody, or control” over the funds that Doran embezzled. Id. § 666(a)(l)(A)(ii). As I explained above, § 666 did not require the government to prove that FSU owned the embezzled funds. By its plain terms, the statute allowed the government to prove that FSU either “owned ... or ... [had] care, custody, or control of” the funds that Doran embezzled. 18 U.S.C. § 666(a)(l)(A)(ii) (emphasis added). The fact that it was the SIF’s money Doran embezzled thus does not change this analysis.

The government proved that (1) FSU determined the composition of the SIF’s Board of Directors, see SIF Articles of Incorporation (“SIF Articles”) art. VII, §§ 1, 2; (2) FSU officers or employees held six of seven Board positions, see id; (3) FSU’s Board of Trustees and president each had veto power over changes to the SIF’s Articles and bylaws, see id art. IX; (4) Doran, an FSU employee, managed the SIF’s funds on a day-to-day basis, executing trades, vetoing investment decisions he thought unwise, and moving funds in and out of the SIF’s bank account; and (5) the SIF was a “University direct-support organization” under Florida law, see Fla. Stat. § 1004.28; SIF Articles art. IV, § 1. This evidence sufficed to enable a “reasonable trier of fact, choosing among reasonable interpretations of the evidence, [to] find ... beyond a reasonable doubt” that FSU had care, custody, or control over the funds that Doran embezzled. Pineiro, 389 F.3d at 1367.

C. Element (3): Proof that FSU Received the Requisite Federal Benefits

The government failed to meet its burden to prove that FSU received the requisite amount of federal benefits during the relevant period. Viewing the evidence in the light most favorable to the government, I conclude that no reasonable jury could have found beyond a reasonable doubt that FSU received over $10,000 in federal funds “in connection with programs defined by a sufficiently comprehensive structure, operation, and purpose to merit characterization of the funds as benefits under § 666(b).” McLean, 802 F.3d at 1231 (quotation marks omitted).

With respect to the federal benefits element of § 666, it was the government’s burden to “prove beyond a reasonable doubt that [Doran] worked for an entity which received (1) more than $10,000 in federal funds (2) in connection with programs defined by a sufficiently comprehensive structure, operation, and purpose to merit characterization of the funds as benefits under § 666(b).” McLean, 802 F.3d at 1237 (alterations and internal quotation marks omitted). To satisfy this test, the government must at a minimum identify (1) one or more particular disbursements of federal funds to the recipient organization during the relevant one year period; (2) the dollar amount of each disbursement, the sum of which must exceed $10,000; (3) the date each disbursement was made; and (4) a sufficiently particularized purpose for which each disbursement was made. McLean, 802 F.3d at 1237. We “scrutinize the actual evidence” the government presented as to whether federal funds rise to the level of “benefit.” Id. at 1231, 1240. “To satisfy this scrutiny, a court should examine the conditions under which the organization receives the federal payments.” Id. at 1236 (internal quotation marks omitted).

The government’s sole evidence as to the “structure, operation, and purpose,” id. at 1237, of the federal programs that provided funding to FSU was the testimony of Pamela R. Ray, FSU’s Director of Sponsored Research. Ray described the federal programs that disbursed funds to FSU in broad and general terms that failed to provide the sort of detail that McLean requires. She identified several disbursements of funds to FSU during the period in which Doran’s conduct transpired and gave precise dollar amounts for some disbursements, dates of disbursement for others, and particularized purposes for others still, but for no disbursement did she identify all three.

For example, Ray testified that FSU received $179 million in federal funds during Fiscal Year 2010 and $165 million in federal funds during Fiscal Year 2011, but she gave no dates and described no program or purpose for which the funds were disbursed. She testified that FSU’s National High Magnetic Field Lab at Innovation Park, its Learning System Institute, its Center for Disease Prevention at the College of Medicine, its Center for Advanced Power Systems, and unspecified departments in FSU’s arts and sciences colleges received federal funding, but again provided no dates on which the funds were disbursed or dollar amounts that were received. She described the purposes for this funding at a high level of generality:

The federal government has utilized universities for many years to tap into the wealth of knowledge that a university has all the way from humanities through the hard sciences; and they benefit in that they are able to target specific experience that professors and faculty and staff at universities have. And in most cases they get better value if they go to universities for this information to ad-vanee science or new discoveries, or whatever the federal government is interested in....
[Y]ou look at the federal programs that Florida State receives, the National Institute of Health, you know, they are designed — and this is technical, so it’s something that I’m not really exactly experienced in, but — the technical side of the National Institute of Health is for disease control, for new drugs. And then, for instance, the National Science Foundation, we get a lot of money from them to advance more of the psychology, the biological sciences, where they are looking at the new discoveries and new technologies to, in other words, help the common good for the public.

(Doc. 52 at 8.) Ray also testified that FSU’s College of Business received $40,000 from an unspecified federal agency on an unspecified date or dates in Fiscal Year 2011, but she identified no program or purpose for which the funds were disbursed. For no program did she provide any information about its structure or operation or any conditions under which the funds were received.

Such generalized descriptions cannot suffice to demonstrate the existence of a federal program “defined by a sufficiently comprehensive structure, operation, and purpose to merit characterization of [its] funding] as benefits.” McLean, 802 F.3d at 1237 (internal quotation marks omitted). The government failed to elicit testimony from Ray or present any other evidence sufficient to establish that FSU received “benefits” within McLean’s meaning. Id. at 1240. For this reason — and only this reason — I would reverse Doran’s conviction under § 666.

III. The Constitutionality of § 666

Doran argues that construing § 666 to require the government to prove that FSU, rather than the SIF, received the requisite amount of federal benefits would render the statute unconstitutional. “[I]t is a well-established principle governing the prudent exercise of [our] jurisdiction that normally th[is] Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Bond v. United States, — U.S. —, 134 S.Ct. 2077, 2087, 189 L.Ed.2d 1 (2014) (internal quotation marks omitted). Because the majority and I would reverse Doran’s convictions on the ground that the government’s evidence was insufficient for a reasonable jury to find each element of § 666 beyond a reasonable doubt, we need not and should not reach his constitutional challenge to the statute.

The majority opinion states, however, that § 666’s “net cannot be cast so widely as to encompass the wrongdoing that occurred here, for the Government has not demonstrated any federal interest.” Maj. Op. at 1316. Reading this statement to mean only that § 666 does not reach Do-ran’s conduct as a matter of statutory interpretation, I take no issue with it, even though I disagree with the majority’s construction. Nevertheless, to the extent the statement could be read to suggest that Congress’s Article I power cannot constitutionally reach Doran’s conduct, I pause to make some brief observations. First, I suggest the better course would be to refrain from addressing this question until it is necessary to the resolution of a case before us.

Second, were we to evaluate the constitutionality of the statute, we would apply the following standard: “[I]n determining whether” Congress has “the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” United States v. Comstock, 560 U.S. 126, 134, 130 S.Ct. 1949, 176 L.Ed.2d 878 (2010). Congress’s authority to enact § 666 flows from the Spending Clause. See Article I, § 8, cl. 1; Sabri v. United States, 541 U.S. 600, 605, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004). The majority does not address the argument that § 666, applied to Doran’s prosecution, is a valid exercise of Congress’s authority under the Spending Clause to ensure that taxpayer dollars are not used to line thieves’ pockets. Moreover, as the district court- observed, “[n]o prudent benefactor would knowingly provide funds to an organization that employs a thief— regardless of whose funds the thief makes a practice of stealing.” (Doc. 85 at 21.) The majority also does not address the fact that FSU financially supported the SIF in the form of classroom space, a faculty ad-visor whose salary it paid, and other non-monetary resources.

We should not raise doubts about § 666’s constitutionality without considering these points. I do not mean to suggest that all or any of them are meritorious. To the contrary, I believe we should refrain from addressing — however off-handedly— the extent of Congress’s authority to criminalize conduct such as Doran’s. We have no duty to ask whether § 666 — read more broadly than the majority construes it— would survive constitutional scrutiny because this case does not turn on the statute’s constitutionality.

IV. Conclusion

For the reasons explained above, I concur in the majority’s judgment that Do-ran’s conviction must be reversed.

      . The District Court sentenced Doran to thirteen months in prison and fined him $15,000. He was granted release pending appeal.

      . The full name of the SIF, as stated in its Articles of Incorporation, is “The Florida State University College of Business Student Investment Fund, Incorporated.”

      . Doran also paid the SIF $893.50 in interest.

      . The statute defines this term to mean “a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense.” 18 U.S.C. § 666(d)(5). "Such period may include time both before and after the commission of the offense.” Id.

      . I use employment terminology here as a shorthand for the various agency relationships § 666 reaches. See 18 U.S.C. § 666(d)(1) (“[TJhe term 'agent' means a person authorized to act on behalf of another person or a government and, in the case of an organization or government, includes a servant or employee, and a partner, director, officer, manager, and representative.”).

      . See, e.g., Model Crim. Jury Instr. for the 3d Cir. No. 6.18.666A1A-4 ("[T]he words 'care,' 'custody,’ and 'control' ... express a similar idea. That is that the organization ... had control over and responsibility for the property even though it was not the actual owner of the property at the time of [the defendant]'s actions.” (alterations omitted)).

      . All references to "(Doc._)” refer to the numbered district court docket entries.

      . Doran urges us to adopt the definition of "care, custody, or control” used in the Third Circuit's Model Criminal Jury Instructions. See supra note 3. I accept that definition, which does not change the result here.

      . A “University direct-support organization” is an organization that is
      1. A Florida corporation not for profit incorporated under the provisions of chapter 617 and approved by the Department of State.
      2. Organized and operated exclusively to receive, hold, invest, and administer property and to make expenditures to or for the benefit of a state university in Florida or for the benefit of a research and development park or research and development authority affiliated with a state university and organized under part V of chapter 159.
      3. An organization that a state university board of trustees, after review, has certified to be operating in a manner consistent with the goals of the university and in the best interest of the state. Any organization that is denied certification by the board of trustees shall not use the name of the university that it serves.
      Fla. Stat. § 1004.28(l)(a). “The chair of the university board of trustees may appoint a representative to the board of directors and the executive committee of any direct-support organization.” Id. § 1004.28(3). In addition, “[t]he president of the university!)] ... or his or her designee, shall also serve on the board of directors and the executive committee of any direct-support organization established to benefit that university.” Id. Direct-support organizations must submit to annual audits by independent certified public accountants in accordance with rules adopted by the university board of trustees. Id. § 1004.28(5)(a). Audit reports must be submitted to the Board of Governors of the State University System of Florida for review. Id. "The Board of Governors [and] the university board of trustees ... shall have the authority to require and receive from the organization or from its independent auditor any records relative to the operation of the organization.” Id.

      . Citing Stiller v. Sumter Bank and Trust Co., 860 F.Supp. 835 (M.D. Ga. 1994), Doran argues that to prove § 666’s "care, custody, or control” element, 18 U.S.C. § 666(a)(l)(A)(ii), the government needed to prove that his embezzlement exposed FSU to a risk of loss. Stiller involved a civil claim under the federal bank fraud statute, which prohibits the use of false or fraudulent means to obtain “property ... under the custody or control of[ ] a financial institution,” 18 U.S.C. § 1344(2); “[a]s long as [a] bank is exposed to the risk of loss by some scheme or artifice,” Stiller said, “[§ 1344] has been violated.” Stiller, 860 F.Supp. at 839. Stiller did not construe § 1344 to require proof that an organization bore the risk of loss for a defendant's conduct to establish the organization’s custody or control over the misappropriated property; it held only that such proof suffices to satisfy the statute. For similar reasons, I do not read § 666 to require proof that FSU bore the risk of loss for Doran's embezzlement of the SIF's funds.

      . Ray testified that the term "Fiscal Year X” refers to the period beginning on July 1 of the year prior to Year X and ending on June 30 of YearX.

      . The SIF did not pay Doran a salary; its bylaws provided that its officers "shall receive no special salary or compensation for being officers of this Corporation other than their usual salaries as employees of The Florida State University, if so employed.” SIF Bylaws art. Ill, § 8.