Before a panel of federal judges in Montgomery last week, an attorney representing Freeman Jockisch argued the former Mobile County Commissioner and convicted sex offender did not receive a proper trial.

Jockisch was found guilty of attempting to lure a child for unlawful sex in April 2014 and was subsequently sentenced to 10 years in federal prison last July.

Jockisch was nabbed in 2013 during a sting conducted by federal agents working in conjunction with the Saraland Police Department.

Currently the 11th Circuit Court of Appeals is only hearing around 20 percent of appellate cases, but somehow Jockisch’s request for an appeal — one he filed himself from prison last November — made the cut.
 
Judge Julie E. Carnes said the appeal was being heard because the evidence used to prosecute Jockisch “came close to the line” of what prosecutors were required to prove in order to get a conviction.

Arguing before Carnes, Judge Adalberto Jordan and Judge Eduardo C. Robreno, defense attorney Richard Shields said Jockisch’s appeal hinges on the three violations of Alabama’s state law included as elements to prosecute the original case.

Case facts and their relevance
After having multiple documented conversations through the “Casual Encounters” section of Craigslist, Jockisch believed he spoke to a 15-year-old girl named “Sara” via telephone but was actually speaking to an FBI agent. Agents and officers then arranged a meeting at an apartment complex in Saraland, where Jockisch was arrested.

Freeman Jockisch

Freeman Jockisch

In his federal indictment, Jockisch was charged with child enticement. Typically in these cases, statements perpetrators believe they are making to an underaged child can be used against them. If specific sex acts are included in those statements, applicable state charges are listed to show the intent of the perpetrator, regardless of whether there was an actual victim.

“We’re not strangers to these offenses,” Shields told the panel of judges. “What the individual is going to do is a key component of the charge, and in this case, all we got was ‘I want to make love to you. I want to make you feel good.’”

Shields was quoting email messages Jockisch had sent to undercover law enforcement officers that are not specifically sexual in nature. In Jockisch’s indictment, three state charges were listed to show the intent of what could have happened if an actual child had been involved — those included second-degree statutory rape, sodomy and sexual misconduct.

In his oral argument, Shields cited previous rulings in the 7th Judicial Circuit that determined a jury would need to have unanimously found a defendant guilty of one of those specific state offenses. The panel countered, saying Jockisch’s 2014 conviction suggested a jury of his peers believed he intended to commit at least one of those crimes.

“How would it be possible to specify what kind of sexual act? Would you have a jury go back and assume?” Carnes asked. “There would be an inability to know for sure. Even he wouldn’t know until he got there. He could have had one thing in mind and then changed his mind.”

Carnes went on to say the least of those charges, sexual misconduct, would be covered in the event of statutory rape or sodomy, and as a result, no matter what imaginary sex act a juror perceived, it would have included at least one violation of state law.

Assistant U.S. Attorney Adam Overstreet agreed, saying, in his understanding, the government was “not required to prove which specific sex act would have been performed or which specific state statute would have been violated had [Jockisch] been successful in enticing this minor.”

Likewise, Overstreet maintained that the 12 jurors only had to agree on the fact “that something was unlawful, not how it was unlawful.”

“Elements” and “means”
Overstreet said the conflicting sides of the appeal came from a statutory interpretation issue between “elements” and “means” in a criminal complaint.

An element is an aspect of a criminal action. For example, in a charge of assault and battery, an essential element of the offense would be the unwanted physical contact. The “means” refer to the “method by which a crime is committed,” according to Shields.

During the Jockisch appeal, Overstreet downplayed the importance of the state rape, sodomy and sexual misconduct crimes as a “means” by which the federal crime of child enticement was committed. On the contrary, Shields said those offenses were essential “elements” of the crime, and thus should have been clearly and unanimously agreed to by the jury.

From the bench, Jordan appeared to agree with Shields’ interpretation. He asked Overstreet why the government tried to prove those state violations might have occurred if they weren’t a significant element to the crime.

“If what you’re saying is true, then next time you can confidently say, ‘Judge, we aren’t required to prove a sex act would have occurred. The enticement is enough,’” Jordan told Overstreet. “There is no way on God’s green earth that a U.S. Attorney is going to do that after today’s oral arguments.”

During his closing statements, Overstreet said the entire issue over the state crimes listed in the indictment would have no effect on the crime of child enticement. He said if anything, not knowing which specific crime the jury believed Jockisch contemplated was a “harmless error.”

From the bench, Carnes did not agree.

“It’s not a harmless error,” she said. “You’ve got to prove he did something that would violate a law.”

Verdict, implications
In total, the oral arguments related to Jockisch’s appeal only lasted about 30 minutes. Afterward, Shields told Lagniappe a response on the motion could take anywhere from 30 days to two years, but he said he was hopeful for a decision around Thanksgiving.

Shields further said the ambiguity in the statements Jockisch made to agents he believed were an underage girl named “Sara” should show there wasn’t enough evidence to suggest Jockisch planned to commit sexual abuse, rape or sodomy. As someone who’s seen similar cases, Shields added he’s never been involved with one where a specific sex act was not overtly discussed by the defendant.

Overall, Shields said he felt confident about last week’s hearing.

Interestingly, although the case was not mentioned in the court documents or oral arguments, Jockisch attached a news article about a similar case involving former Mobile County Assistant District Attorney Steve Giardini when he filed his appeal from a federal prison in Louisiana.

Giardini was charged with enticing a child for sex and soliciting the production of child pornography, but a state jury failed to reach a verdict. In 2012, Giardini’s case was thrown out for the lack of an actual victim and he continues to practice law today.

Though he couldn’t cite them specifically, Shields said changes in federal law between the dates of the two cases allowed federal prosecutors to convict Jockisch even though — like in Giardini’s case — a victim never existed.