Eleventh Circuit: 18 U.S.C. § 951’s Agent-Notification Duty Is Content-Neutral (Intermediate Scrutiny) and “Direction” Means Guidance, Not Control

1. Introduction

United States v. Augustus C. Romain, Jr. (11th Cir. Aug. 5, 2026) arises from a multi-year relationship between members (and a former member) of the African People’s Socialist Party (“Party”) and Aleksandr Ionov, who led the “Anti-Globalization Movement” and was described at trial as an asset of Russia’s Federal Security Service. The government alleged that Ionov funded travel and events, solicited drafts and publications, requested pro-Russian statements, coordinated media appearances, and directed protest activity—particularly after Russia’s 2022 invasion of Ukraine.

A superseding indictment charged several defendants with (i) substantive violations of 18 U.S.C. § 951(a) (acting as an agent of a foreign government without prior notification to the Attorney General) and (ii) conspiracy under 18 U.S.C. § 371 to violate § 951(a). The jury convicted all defendants of conspiracy, while acquitting on the substantive § 951 counts.

On appeal, the Eleventh Circuit addressed four principal issues: (1) whether the § 951 / § 371 prosecutions, as applied, violated the First Amendment; (2) whether the evidence was sufficient to prove a conspiracy to violate § 951; (3) whether the district court erred in refusing certain defense-requested jury instructions; and (4) whether the prosecutor’s questioning about “doxing” warranted a new trial.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held that:

  • First Amendment: § 951 (and conspiracy to violate it) is content-neutral as applied and thus subject to intermediate scrutiny under TikTok Inc. v. Garland and United States v. O’Brien; it survives because the notification regime advances the government’s important interest in identifying those acting on behalf of foreign governments and does so narrowly.
  • Sufficiency: The evidence permitted a reasonable jury to find an agreement, knowing participation, and overt acts aimed at the unlawful objective—acting “subject to the direction” of a foreign government without notification.
  • Mens rea re notification: Binding circuit precedent (United States v. Campa; United States v. Duran) foreclosed any requirement that defendants knew of § 951’s notification requirement; Rehaif v. United States and Ruan v. United States did not abrogate that rule.
  • Evidence: Co-conspirator statements between Ionov and Russian security-service officers were admissible under Fed. R. Evid. 801(d)(2)(E).
  • Jury instructions: Requested instructions either misstated the law (conspiracy does not require completion of the substantive offense) or improperly removed issues from the jury (withdrawal / limiting instruction).
  • Prosecutorial misconduct: The “doxing” line of questioning was not improper or prejudicial.

3. Analysis

A. Precedents Cited

1) First Amendment framework and content neutrality

  • TikTok Inc. v. Garland: The court used TikTok to structure modern First Amendment scrutiny for regulations burdening expressive conduct and to reinforce that laws motivated by “foreign adversary control” can be content-neutral when they do not target particular viewpoints or subject matter. That analogy was central to rejecting strict scrutiny and applying intermediate scrutiny.
  • United States v. O’Brien: Provided the governing approach for regulation of conduct with speech and non-speech elements. The court treated § 951 as regulating conduct (acting under foreign direction/control without notifying), even if prosecutions often involve expressive acts.
  • Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale (both the 901 F.3d decision and “Food Not Bombs II,” 11 F.4th 1266): Cited for (i) when conduct is “expressive,” and (ii) the definition of content neutrality—whether justification is unrelated to suppressing expression. The court aligned § 951 with content-neutral regimes that regulate regardless of message.
  • Ward v. Rock Against Racism (and later citation to Rock Against Racism): Used for the “principal inquiry” into content neutrality: whether government acted because it disagreed with the message. This underwrote the holding that § 951 does not turn on ideology, only on foreign direction/control plus non-notification.
  • Reed v. Town of Gilbert: Defendants invoked Reed to argue facially neutral laws can become content-based in application. The court answered by quoting Reed’s own limits (content-based only if justification depends on content or disagreement with message) and finding § 951 satisfied content neutrality.
  • De Jonge v. Oregon and Cohen v. California: Defendants relied on these to press heightened scrutiny. The court distinguished them: De Jonge condemned criminalizing association/assembly based on disfavored ideas, whereas § 951 does not suppress ideas; Cohen involved punishment “rest[ing] solely upon speech,” while § 951 includes a “separately identifiable” omission—failure to notify.
  • Matal v. Tam and Holder v. Humanitarian L. Project: Used to interpret De Jonge as an anti-viewpoint-discrimination principle and to reject the notion that burdens on association are per se unconstitutional when justified on non-content grounds.
  • Meese v. Keene: Supported the idea that labeling/registration-type regimes can impose minimal burdens without prohibiting distribution of ideas, analogizing to § 951’s notice-only requirement.
  • Scott v. City of Daytona Beach: Cited for the content-neutrality inquiry and modern articulation that content neutrality turns on whether speech is targeted “based on its communicative content.”

2) Elements of § 951 and conspiracy; “direction” versus “control”

  • United States v. Duran: A cornerstone precedent. It supplied both (i) the elements of § 951 and (ii) the “important government interest” in identifying those acting on behalf of foreign governments. It also supplied the rule that conspiracy to violate § 951 does not require knowledge of the notification requirement.
  • United States v. Jimenez: Provided the Eleventh Circuit’s standard for reviewing sufficiency of the evidence and conspiracy elements.
  • United States v. Rafiekian: The court referenced the Fourth Circuit’s suggestion that “control” could resemble employer-like authority, but used it chiefly to explain why “direction” must be given independent meaning.
  • United States v. Ullah (Menashi, J., dissenting): Cited to support defining “direction” as “guidance or supervision,” reinforcing that § 951 can be satisfied by a relationship short of “control.”
  • ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS: Invoked for the surplusage canon—“direction” and “control” must have independent effect—supporting the court’s interpretation that “direction” captures lesser constraint than “control.”

3) Mens rea and claimed abrogation

  • United States v. Campa: Binding Eleventh Circuit authority that § 951 is a general-intent crime and does not require proof that a defendant knew of the duty to register/notify.
  • United States v. Feola: Used (via Duran) to reject importing willfulness into § 371 conspiracies where the object offense lacks it; § 371 provides no textual basis to require that conspirators know they are violating federal law.
  • Rehaif v. United States and Ruan v. United States: Defendants argued these altered mens rea analysis. The court distinguished them as construing statutes with explicit, generally applicable scienter terms that attach to subsequent elements—unlike § 951 as interpreted in Campa.
  • United States v. Dubois: Provided the Eleventh Circuit’s abrogation standard (“demol[ition] and eviscerat[ion]” of fundamental props) to reject claims that Rehaif or Ruan overruled Campa/Duran.

4) Evidence and procedure

  • United States v. Carthen: Supplied the test for admitting co-conspirator statements under Fed. R. Evid. 801(d)(2)(E).
  • United States v. Graham: Used to reject any “substantial independent evidence” requirement to establish conspiracy for Rule 801(d)(2)(E) purposes.
  • United States v. Siegelman: Provided a “liberal standard” for whether statements are “in furtherance” of a conspiracy, including status updates and cohesion maintenance.
  • United States v. Arbane: Defendants argued Ionov’s “ruining [the Party]” message implied he was a frustrator/informant. The court confined Arbane to American agents/informants whose aim is to frustrate the conspiracy, and found it inapplicable where Ionov was the foreign principal driving the unlawful objective.
  • Salinas v. United States: Cited to reaffirm that conspiracy is punishable whether or not the substantive crime is completed—supporting rejection of the defendants’ requested instruction.
  • United States v. Hill: Provided the Eleventh Circuit’s three-part test for reversal based on refusal to give a requested jury instruction.
  • Mut. Life Ins. Co. v. Snyder: Cited for the principle that judges may not remove the jury’s role in weighing evidence on controverted facts (here, withdrawal / limiting-instruction dispute).
  • United States v. Al Jaberi: Supplied standards for prosecutorial misconduct and new-trial analysis (improper + prejudicial).

B. Legal Reasoning

1) Why § 951 is content-neutral and survives intermediate scrutiny

The court’s First Amendment holding turned on characterizing § 951 as regulating status-linked conduct (acting at the direction/control of a foreign government without notice), not regulating messages. Because § 951 applies “without regard to the content of the message an agent spreads,” the justification is not tied to agreement or disagreement with viewpoints. That framing made intermediate scrutiny—rather than strict scrutiny—the operative test.

Under intermediate scrutiny, the court found (i) an “important governmental interest” in identifying persons acting on behalf of foreign governments inside the United States (drawn from United States v. Duran), and (ii) narrow tailoring because § 951 requires only prior notice to the Attorney General; once notice is given, the agent may engage in any speech or advocacy. The decision thus positions § 951’s notice regime as analogous to other disclosure/registration frameworks upheld where the law does not suppress expression but mandates transparency.

2) The “direction” standard: guidance is enough

A key sufficiency issue was whether defendants were merely ideological “allies” or were acting “subject to the direction or control” of a foreign government or official. The court emphasized statutory text: because “direction” and “control” appear in the disjunctive, “direction” must mean something less demanding than “control.” Using ordinary dictionary definitions and the surplusage canon, the panel endorsed “direction” as “guidance or supervision of action.”

Applying that standard, the court pointed to repeated evidence of Ionov issuing “need[s],” “request[s],” and instructions (timing, publication, reporting, protest logistics), combined with defendants’ consistent compliance and awareness that the Movement was an “instrument of Russian government.” That was enough for a rational jury to find an agreement to operate under foreign “direction,” overt acts in furtherance, and non-notification.

3) Conspiracy conviction despite acquittal on the substantive § 951 counts

Although the jury acquitted on substantive § 951 charges, the court treated that result as legally compatible with conspiracy liability: under Salinas v. United States, the agreement and steps toward the unlawful objective may be punished even if the substantive offense does not “ensue” (or even if jurors harbor reasonable doubt on completion). The court therefore rejected an instruction that would have required the jury to find completion of the § 951 offense elements as a prerequisite to conspiracy.

4) No knowledge-of-notice requirement

The panel treated defendants’ mens rea argument as foreclosed by United States v. Campa (general intent; no need to know the notification requirement) and United States v. Duran (same principle applied to conspiracy). The attempt to use Rehaif v. United States and Ruan v. United States failed because those decisions interpreted statutes with explicit scienter terms that grammatically attach to listed elements. Under the Eleventh Circuit’s abrogation doctrine in United States v. Dubois, they did not “demolish” Campa or Duran.

5) Co-conspirator statements and “in furtherance”

The court upheld admission of Ionov’s communications with Russian security-service officers as co-conspirator statements under Rule 801(d)(2)(E). It relied on United States v. Graham to reject a heightened requirement for “substantial” independent evidence and on United States v. Siegelman to treat “status” updates and sharing outputs (videos, reports, progress) as “in furtherance” of the conspiracy. The panel also curtailed the defense effort to cast Ionov as a frustrator under United States v. Arbane.

6) Jury instructions and prosecutorial misconduct

On instructions, the court applied United States v. Hill and found requested language either incorrect (conspiracy does not require completed substantive violation) or improper (limiting instruction would invade the jury’s role on withdrawal/continued participation). On misconduct, applying United States v. Al Jaberi, it found the “doxing” questions tracked the meeting notes’ content (publishing personal information) and were not calculated to inflame or mislead.

C. Impact

The decision is consequential in at least three ways:

  1. First Amendment validation of § 951 as a disclosure regime: By anchoring review in O’Brien and TikTok Inc. v. Garland, the opinion strengthens the government’s ability to apply § 951 to politically expressive activities so long as the statute’s purpose is transparency about foreign governmental direction/control rather than suppression of disfavored viewpoints.
  2. Lower threshold for “direction”: By expressly contrasting “direction” with “control,” and endorsing “guidance/supervision” as sufficient, the court reduces the need for evidence resembling employer-like command authority. Repeated requests + consistent compliance + foreign-government linkage can suffice.
  3. Evidence in foreign-directed conspiracies: The Rule 801(d)(2)(E) analysis—especially the acceptance of status-reporting communications as “in furtherance”—supports broader admissibility of internal communications among foreign principals and handlers in future § 951 conspiracy prosecutions.

More broadly, the case signals that juries may differentiate between substantive completion and conspiratorial agreement (hence the mixed verdict), and that defendants cannot easily reframe a foreign-direction prosecution as viewpoint discrimination where the statute operates irrespective of message content.

4. Complex Concepts Simplified

  • 18 U.S.C. § 951 (foreign agent notification): A federal law requiring a person who agrees to operate in the U.S. subject to a foreign government’s direction or control to notify the Attorney General before acting. It does not, by its terms, ban advocacy; it demands disclosure.
  • Content-neutral vs. content-based: A law is generally “content-neutral” if it applies regardless of what is being said (no targeting of viewpoints or subjects) and is justified without reference to message content. Content-neutral laws typically receive intermediate scrutiny.
  • Intermediate scrutiny (as used here): The government must show an important interest unrelated to suppressing speech and that the law does not burden substantially more speech than necessary. The court treated the interest as transparency about foreign governmental direction.
  • O’Brien test (expressive conduct): When a law regulates conduct that also has expressive aspects, courts often evaluate whether the regulation is justified by a non-speech purpose and is appropriately tailored.
  • “Direction” vs. “control”: “Control” suggests tight command authority; “direction,” as interpreted here, can be satisfied by guidance or supervision—i.e., the foreign principal steers actions that the defendant undertakes.
  • Conspiracy (§ 371): The crime is the agreement plus an overt act toward an unlawful objective; the substantive offense need not be completed.
  • Co-conspirator statements (Rule 801(d)(2)(E)): Statements by one conspirator during and in furtherance of the conspiracy can be used against another conspirator and are treated as “not hearsay” for admissibility purposes.

5. Conclusion

United States v. Augustus C. Romain, Jr. reinforces that § 951’s notification requirement is a content-neutral transparency measure that survives intermediate scrutiny even when prosecutions involve political advocacy, and it clarifies that “direction” under § 951 can be established by guidance and repeated compliance, not only by employer-like “control.” The opinion also strengthens prosecutorial tools in § 951 conspiracy cases by validating the use of co-conspirator communications among foreign principals and handlers and by reaffirming that neither § 951 nor § 371 demands proof that defendants knew of the notification requirement.