Mens rea—or the requirement of a guilty mind—is the second part of criminal culpability, and undoubtedly one of the most complex subjects we will study in this course. It is the idea that the criminal law will (generally) not hold a person criminally responsible for their actions unless the prosecution has demonstrated that they acted in a blameworthy way.

This may sound like the requirement of a voluntary act, discussed in the previous section. But while there is overlap, the two are not the same. In that section we confronted questions of the following sort:

• Was the conduct properly thought of as the defendant's act at all -- was she asleep when it occurred?
• Was she experiencing a seizure?
• Could she have avoided doing what she did?

In this section we acknowledge that the defendant acted and chose to act, but evalute claims like:

• I knew what I was doing, but didn't mean to do harm.
• I knew what I was doing but thought I was doing it safely.
• I knew what I was doing but I didn't know it was illegal to do that.

This is the concept of a guilty mind -- in the same way that we do not punish people for their thoughts alone, we do not punish them for their actions alone either. There must (gerneally) be both a voluntary act and a culpable mental state before criminal liability can be imposed.

This section, more than the last, will also contrast the traditional, sometimes messy approach that common law courts took to mens rea with the careful but sometimes opaque approach of the Model Penal Code. As we read through this material, consider the extent to which the MPC succeeded in its goal of modernizing and sytemitizing the way we think about culpable mental states.

Regina v. Cunningham

Court of Criminal Appeal

2 Q.B. 396 (1957)

BYRNE J. read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed under section 23 of the Offences against the Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade.

The facts were that the appellant was engaged to be married and his prospective mother-­in-law was the tenant of a house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied by the appellant after his marriage. Mrs. Wade and her husband, an elderly couple, lived in the house next door. At one time the two houses had been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall was composed of rubble loosely cemented.

On the evening of January 17, 1957, the appellant went the cellar of No. 7A, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents, and in a second indictment he was charged with the larceny of the gas meter and its contents. To that indictment he pleaded guilty and was sentenced to six months imprisonment. In respect of that matter he does not appeal.

The facts were not really in dispute, and in a statement to a police officer the appellant said: “All right, I will tell you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it the wall and threw it away." Although there was a stop tap within two feet of the meter the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.

At the close of the case for the prosecution, Mr. Brodie, who appeared for the appellant at the trial and who has appeared for him again in this court submitted that there was no case to go to the jury, but the judge, quite rightly in our opinion, rejected this submission. The appellant did not give evidence.

The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also malicious within the meaning of section 23 of the Offences against the Person Act, 1861.

Before this court Mr. Brodie has taken three points, all dependent upon the construction of that section. Section 23 provides:

Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .

Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury as to the meaning of the word "maliciously.”

We have considered [the cases submitted by the defendant as well as] the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952:

In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured.

We think that this is an accurate statement of the law. In our opinion the word maliciously in a statutory crime postulates foresight of consequence.

In his summing-up Oliver J. directed the jury as follows:

You will observe that there is nothing there about 'with intention that that person should take it.' He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action. 'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'? 'Malicious' for this purpose means wicked -- something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.

The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in the meter . . . broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house. If it were part of this offense - which it is not -that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he intended that, since he did an action which he must have known would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously.

With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly - and he had clearly acted wickedly in stealing the gas meter and its contents - they ought to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.

In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word maliciously in the context of section 23, would without doubt have convicted.

In these circumstances this court has no alternative but to allow the appeal and quash the conviction.

Regina v. Cunningham shows a number of problems with the common law, or traditional, approach to mens rea. First, the legislature used an ambiguous term, maliciously, to describe the mental state required for conviction. This term could be taken to mean that it must be shown that the defendant intended to do Mrs. Wade harm or that he was doing something he ought not to have been doing (theft) and in doing that malicious act, caused Mrs. Wade harm. Or, as the court ultimately interprets it, that he was aware of a risk that she might be harmed and went ahead and did the dangerous thing anyhow. In other words, much is left to interpretation.

Second, it is not clear what the word maliciously modifies. Is it the release of the gas and its consumption by Mrs. Wade or the injury that subsequently befell her? That is, is it enough that he knew he was releasing coal gas and he knew that it might be respirated by her, or must he also have had some mens rea with regard to whether that gas might actually injure her.

Third, the trial court seemed at best reluctant to explain these terms to the jury. Its instruction that malicious means wicked and that's "as good a definition as any other which you would get" does not seem calculated to clear the matter up in the minds of jurors. The jury is invited to convict Cunningham for being a bad person, rather than focusing closely on exactly what he did and what he intended.

In this way, Cunningham is taught here as an example of the sometimes frustrating manner in which juries and courts dealt with mens rea in times past. Over the last half century, however, states, largely relying on the Model Penal Code approach, have attempted to simplify and systemitize the treatment of mens rea. As you read through the statutes and cases that follow, consider whether and to what extent the modern approach improves on the older one.

MPC § 2.02 General Requirements of Culpability.

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely.

A person acts purposely with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(b) Knowingly.

A person acts knowingly with respect to a material element of an offense when

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(c) Recklessly.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

(d) Negligently.

A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.

(6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.

(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.

(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.

(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense.

Commentary to 2.02(1)

Subsection (1) articulates the Code’s insistence that an element of culpability is requisite for any valid criminal conviction and that the concepts of purpose, knowledge, recklessness, and negligence suffice to delineate the kinds of culpability that may be called for in the definition of specific crimes. The only exception to this general requirement is the narrow allowance for offenses of strict liability in Section 2.05, limited to cases where no severer sentence than a fine may be imposed.

The requirement of culpability applies to each “material element” of the crime. The term “material element” is defined in Section 1.13(10) to encompass only matters relating to the harm or evil sought to be prevented by the law defining an offense or to the existence of a justification or excuse for the actor’s conduct. Facts that relate to other matters, such as jurisdiction, venue, or limitations are not “material” within this definition.

Which of the four kinds of culpability suffices to establish a particular material element of a particular offense is determined either by the definition of the offense or by the other provisions of this section.

Colorado Penal Code examples

Robbery Section 18-4-301

A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.

Arson Section 18-4-102

A person who knowingly sets fire to, burns, causes to be burned, or by the use of any explosive damages or destroys, or causes to be damaged or destroyed, any building or occupied structure of another without his consent commits first degree arson.

Stalking Section 18-3-602

A person commits stalking if directly, or indirectly through another person, the person knowingly:

(a)   Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship.

Examples from Elsewhere

Destruction of Property (DC Code Ann. Setion 22-303 (2016)

Whoever maliciously injures or breaks or destroys, or attempts to injure or break or destroy, by fire or otherwise, any public or private property, whether real or personal, not his or her own, of the value of $1,000 or more, shall be fined not more than $25,000 or shall be imprisoned for not more than 10 years, or both.

Destruction of Property (NY Penal Law Section 145.10 (2016)

A person is guilty of criminal mischief in the second degree when with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he has such right, he damages property of another person in an amount exceeding one thousand five hundred dollars.

The Model Penal Code attempts to systemitize the use of mens rea terms in at least two important ways.

First, the MPC distinguishes between material and non-material elements. § 2.02(1) tells us that with respect to every material element, some mens rea must be proven by the government beyond a reasonable doubt. The comment makes clear that we use the statutory language to determine which mens rea must be proven with regard to each material element. By contrast, with respect to non-material elements no mens rea need be proven. What is a non-material element? The MPC in § 1.13(10) defines a material element as “an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with … the harm or evil, incident to conduct, sought to be prevented by the law defining the offense.” So, for example, when we discussed the Colorado model jury instructions, it was an element of each offense that the conduct occurred in the state of Colorado. Is that a material element of the offense? Similarly, those statutes required that the offense occur "on or about the date" alleged by the government. This requirement is put in place to assure that the crime was charged before the statute of limitations had elapsed. In that context, is the date on which the crime occurred a material element of the offense?

Second, the Model Penal Code divides elements into conduct, attendant circumstances, and results. These differences are less crucial than the distinction made between material and non-material elements. As we’ve seen § 2.02(2) changes the definitions of the four mens rea terms slightly based on what kind of element we are talking about -- conduct, circumstances, or results. This is largely because a defendant can know with certainty whether or not it is night time (an attendant circumstance) but with regard to a result that might occur in the future (such as the death of another person) the most he can be is virtually certain that it will occur. The Code was mindful of these subtle distinctions in drafting its definitions, but they will rarely matter in our analysis.

These two distinctions (between material and non-material elements and among the various kinds of elements) are largely independent of each other. So, some attendant circumstances (that the person with whom the defendant had sex is under the age of consent, say) are material while others (the event occurred in Colorado) are not.

United States v. Jewell

United States Court of Appeals

532 F.2d 697 (9th Cir. 1976)

It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marihuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was false. On the other hand there was evidence from which the jury could conclude that appellant spoke the truth — that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery. If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.

Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that "absolutely, positively, he has to know that it's there." The court said, "I think, in this case, it's not too sound an instruction because we have evidence that if the jury believes it, they'd be justified in finding he actually didn't know what it was — he didn't because he didn't want to find it."

The court instructed the jury that "knowingly" meant voluntarily and intentionally and not by accident or mistake. The court told the jury that the government must prove beyond a reasonable doubt that the defendant "knowingly" brought the marihuana into the United States (count 1: 21 U.S.C. § 952(a)), and that he "knowingly" possessed the marihuana (Count 2: 21 U.S.C. § 841(a)(1)). The court continued:

The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.

The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, "One with a deliberate anti-social purpose in mind . . . may deliberately 'shut his eyes' to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having 'knowledge' of the facts as they are ultimately discovered to be." J. Ll. J. Edwards, writing in 1954, introduced a survey of English cases with the statement, "For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . 'knowingly.'" Professor Glanville Williams states, on the basis both English and American authorities, "To the requirement of actual knowledge there is one strictly limited exception. . . . [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.” Professor Williams concludes, "The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."

The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.

This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: "When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist." As the Comment to this provision explains, "Paragraph (7) deals with the situation British commentators have denominated 'wilful blindness' or `connivance,' the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist."

"Deliberate ignorance" instructions have been approved in prosecutions under criminal statutes prohibiting "knowing" conduct by the Courts of Appeals of the Second, Sixth, Seventh, and Tenth Circuits. In many other cases, Courts of Appeals reviewing the sufficiency of evidence have approved the premise that "knowingly" in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it. These lines of authority appear unbroken. Neither the dissent nor the briefs of either party has cited a case holding that such an instruction is error or that such evidence is not sufficient to establish "knowledge."

There is no reason to reach a different result under the statute involved in this case. Doing so would put this court in direct conflict with Courts of Appeals in two other circuits that have approved "deliberate ignorance" instructions in prosecutions under 21 U.S.C. § 841(a), or its predecessor, 21 U.S.C. § 174. Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term "knowingly" in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the "cluster of ideas" attached to such a familiar term of art. Morissette v. United States, 342 U.S. 246, 263, (1952).

Appellant's narrow interpretation of "knowingly" is inconsistent with the Drug Control Act's general purpose to deal more effectively "with the growing menace of drug abuse in the United States." Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband — in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing.

It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant's interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.

It begs the question to assert that a "deliberate ignorance" instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term "knowingly" in the statute. If it means positive knowledge, then, of course, nothing less will do. But if "knowingly" includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.

It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance. "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew." In the language of the instruction in this case, the government must prove, "beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth."

No legitimate interest of an accused is prejudiced by such a standard, and society's interest in a system of criminal law that is enforceable and that imposes sanctions upon all who are equally culpable requires it.

The conviction is affirmed.

ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).

The approach adopted in section 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts, the English doctrine:

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of  its existence, unless he actually believes that it does not exist.

This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it; as such, it has been cited with approval by the Supreme Court.

In light of the Model Penal Code's definition, the "conscious purpose" jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form "a conscious purpose to avoid learning the truth" unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.

The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he "actually believed" there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge — that a reasonable man should have inspected the car and would have discovered what was hidden inside. 

Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or "not actually aware" that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge. A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it.

How satisfying is the court's opinion in Jewell. Even if one is sympathetic to the difficulties of proof raised by one who takes steps to avoid learning the truth, doesn't the 9th Circuit's opinion drastically rewrite the statute Congress passed? Congress passed a statute that requires knowing and the court certainly seems to have allowed proof of something else to suffice. Or has it?

Also, how compelling is the court's argument that "Appellant's narrow interpretation of 'knowingly' is inconsistent with the Drug Control Act's general purpose to deal more effectively 'with the growing menace of drug abuse in the United States.'"? Isn't that true of any interpretation that would make it harder for the government to prove its case against a defendant?

Finally, how compelling is Judge (later Justice) Kennedy's critique of the court's opinion? Do you agree with him that the court has deviated significantly from the MPC approach which the court quotes so approvingly?

People v. Hall

Colorado Supreme Court

999 P.2d 207 (Colo. 2000)

Justice BENDER delivered the Opinion of the Court.

I. INTRODUCTION

We hold that Nathan Hall must stand trial for the crime of reckless manslaughter. While skiing on Vail mountain, Hall flew off of a knoll and collided with Allen Cobb, who was traversing the slope below Hall. Cobb sustained traumatic brain injuries and died as a result of the collision. The People charged Hall with felony reckless manslaughter.

At a preliminary hearing to determine whether there was probable cause for the felony count, the county court found that Hall's conduct “did not rise to the level of dangerousness” required under Colorado law to uphold a conviction for manslaughter, and the court dismissed the charges.

The charge of reckless manslaughter requires that a person “recklessly cause [ ] the death of another person.” § 18–3–104(1)(a), 6 C.R.S. (1999). For his conduct to be reckless, the actor must have consciously disregarded a substantial and unjustifiable risk that death could result from his actions. See § 18–1–501(8). We hold that, for the purpose of determining whether a person acted recklessly, a particular result does not have to be more likely than not to occur for the risk to be substantial and unjustifiable. A risk must be assessed by reviewing the particular facts of the individual case and weighing the likelihood of harm and the degree of harm that would result if it occurs. Whether an actor consciously disregarded such a risk may be inferred from circumstances such as the actor's knowledge and experience, or from what a similarly situated reasonable person would have understood about the risk under the particular circumstances.

II. FACTS AND PROCEDURAL HISTORY

On April 20, 1997, the last day of the ski season, Hall worked as a ski lift operator on Vail mountain. When he finished his shift and after the lifts closed, Hall skied down toward the base of the mountain. The slopes were not crowded.

On the lower part of a run called “Riva Ridge,” just below where the trail intersects with another called “North Face Catwalk,” Hall was skiing very fast, ski tips in the air, his weight back on his skis, with his arms out to his sides to maintain balance. He flew off of a knoll and saw people below him, but he was unable to stop or gain control because of the moguls.

Hall then collided with Cobb, who had been traversing the slope below Hall. The collision caused major head and brain injuries to Cobb, killing him. Cobb was taken to Vail Valley Medical Center, where efforts to resuscitate him failed. Hall's blood alcohol level was .009, which is less than the limit for driving while ability impaired. A test of Hall's blood for illegal drugs was negative.

The People charged Hall with manslaughter (a class 4 felony)1 and misdemeanor charges that are not relevant to this appeal. At the close of the prosecution's case at the preliminary hearing, the People requested that, with respect to the manslaughter count, the court consider the lesser-included charge of criminally negligent homicide (a class 5 felony).

III. DISCUSSION

B. Manslaughter and Recklessness

As Colorado's criminal code defines recklessness, “A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that circumstance exists.” § 18–1–501(8). Thus, in the case of manslaughter, the prosecution must show that the defendant's conduct caused the death of another and that the defendant:

1) consciously disregarded

2) a substantial and

3) unjustifiable risk that he would

4) cause the death of another.

We examine these elements in detail.

Substantial and Unjustifiable Risk

To show that a person acted recklessly, the prosecution must establish that the person's conduct created a “substantial and unjustifiable” risk. The district court construed some of our earlier cases as requiring that the risk of death be “at least more likely than not” to constitute a substantial and unjustifiable risk of death. In interpreting our cases, the court relied on an erroneous definition of a “substantial and unjustifiable” risk. Whether a risk is substantial must be determined by assessing both the likelihood that harm will occur and the magnitude of the harm should it occur. We hold that whether a risk is unjustifiable must be determined by assessing the nature and purpose of the actor's conduct relative to how substantial the risk is. Finally, in order for conduct to be reckless, the risk must be of such a nature that its disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise.

A risk does not have to be “more likely than not to occur” or “probable” in order to be substantial. A risk may be substantial even if the chance that the harm will occur is well below fifty percent. Some risks may be substantial even if they carry a low degree of probability because the magnitude of the harm is potentially great. For example, if a person holds a revolver with a single bullet in one of the chambers, points the gun at another's head and pulls the trigger, then the risk of death is substantial even though the odds that death will result are no better than one in six. ….

Whether a risk is substantial is a matter of fact that will depend on the specific circumstances of each case. Some conduct almost always carries a substantial risk of death, such as engaging another person in a fight with a deadly weapon or firing a gun at another. In such instances, the substantiality of the risk may be evident from the nature of the defendant's conduct and the court will not have to examine the specific facts in detail.

Other conduct requires a greater inquiry into the facts of the case to determine whether it creates a substantial risk of death. In Moore v. People, we affirmed a manslaughter conviction where the defendant kicked the victim to death. 925 P.2d 264, 269 (Colo.1996). While “kicking another” may not necessarily involve a substantial risk of death, a trier of fact can find that repeatedly kicking the head and torso of someone already beaten unconscious can create a substantial risk of death. Similarly, driving a car is not conduct that by its nature necessarily involves a substantial risk of death to others, but after viewing the facts of a particular case closely a court may determine that the defendant created a substantial risk of death.

A court cannot generically characterize the actor's conduct (e.g., “driving a truck”) in a manner that ignores the specific elements of the conduct that create a risk (e.g., driving a truck with failing brakes on a highway). For example, “installing a heater” carries little risk under normal circumstances. However, the Connecticut Supreme Court held that improperly wiring a 120–volt heater to a 240–volt circuit, failing to use a lock nut to connect the heater to the circuit breaker, and using other faulty installation techniques creates a substantial risk of “catastrophic fire” and death. Thus, to determine whether the conduct created a substantial risk of death, a court must inquire beyond the general nature of the defendant's conduct and consider the specific conduct in which the defendant engaged.

As well as being substantial, a risk must be unjustifiable in order for a person's conduct to be reckless. Whether a risk is justifiable is determined by weighing the nature and purpose of the actor's conduct against the risk created by that conduct. If a person consciously disregards a substantial risk of death but does so in order to advance an interest that justifies such a risk, the conduct is not reckless. For example, if a surgeon performs an operation on a patient that has a seventy-five percent chance of killing the patient, but the patient will certainly die without the operation, then the conduct is justified and thus not reckless even though the risk is substantial.

In addition to the separate analyses that are applied to determine whether a risk is both “substantial” and “unjustified,” the concept of a “substantial and unjustifiable risk” implies a risk that constitutes a gross deviation from the standard of care that a reasonable law-abiding person would exercise under the circumstances. Both the Model Penal Code and the New York Code, which the General Assembly followed in drafting the Colorado criminal code, expressly define a “substantial and unjustifiable risk” as one that is a gross deviation from the reasonable standard of care. A substantial and unjustifiable risk must constitute a “gross deviation” from the reasonable standard of care in order to justify the criminal sanctions imposed for criminal negligence or reckless conduct, as opposed to the kind of deviation from the reasonable standard of care that results in civil liability for ordinary negligence. Whether a risk is substantial and unjustified is a question of fact. Hence, at trial, the trier of fact must determine whether the facts presented prove beyond a reasonable doubt that the risk was substantial and unjustified. In the limited context of a preliminary hearing, the court must determine whether a risk was substantial and unjustified by considering the evidence presented in the light most favorable to the prosecution, and the court must ask whether a reasonable person could “entertain” the belief—though not necessarily conclude beyond a reasonable doubt—that the defendant's conduct was reckless based on that evidence.

Conscious Disregard

In addition to showing that a person created a substantial and unjustifiable risk, the prosecution must demonstrate that the actor “consciously disregarded” the risk in order to prove that she acted recklessly. A person acts with a conscious disregard of the risk created by her conduct when she is aware of the risk and chooses to act despite that risk. The statutory definitions of culpable mental states make these distinctions clear.

Although recklessness is a less culpable mental state than intentionally or knowingly, it involves a higher level of culpability than criminal negligence. Criminal negligence requires that, “through a gross deviation from the standard of care that a reasonable person would exercise,” the actor fails to perceive a substantial and unjustifiable risk that a result will occur or a circumstance exists. § 18–1–501(3). An actor is criminally negligent when he should have been aware of the risk but was not, while recklessness requires that the defendant actually be aware of the risk but disregard it. Thus, even if she should be, a person who is not actually aware that her conduct creates a substantial and unjustifiable risk is not acting recklessly.

A court or trier of fact may infer a person's subjective awareness of a risk from the particular facts of a case, including the person's particular knowledge or expertise. For example, a court may infer a person's subjective awareness of the risks created by firing a gun from the facts that the person served an extended tour of duty in the military as a rifleman and machine gunner and was instructed by both the army and his father not to point a gun at another person. A court may infer from a person's extensive training and safety instruction that the person understood the risks of fire and other “catastrophic dangers” created by the “slipshod” installation of a baseboard heater.

In addition to the actor's knowledge and experience, a court may infer the actor's subjective awareness of a risk from what a reasonable person would have understood under the circumstances. When a court infers the defendant's subjective awareness of a risk from what a reasonable person in the circumstances would have known, the court may consider the perspective of a reasonable person in the situation and with the knowledge and training of the actor. Although a court can infer what the defendant actually knew based on what a reasonable person would have known in the circumstances, a court must not confuse what a reasonable person would have known in the circumstances with what the defendant actually knew. Thus, if a defendant engaged in conduct that a reasonable person would have understood as creating a substantial and unjustifiable risk of death, the court may infer that the defendant was subjectively aware of that risk, but the court cannot hold the defendant responsible if she were actually unaware of a risk that a reasonable person would have perceived.

Hence, in a reckless manslaughter case, the prosecution must prove that the defendant acted despite his subjective awareness of a substantial and unjustifiable risk of death from his conduct. Because absent an admission by the defendant such awareness cannot be proven directly, the court or trier of fact may infer the defendant's awareness of the risk from circumstances such as the defendant's training, knowledge, and prior experiences, or from what a reasonable person would have understood under the circumstances.

Risk of Death

The final element of recklessness requires that the actor consciously disregard a substantial and unjustifiable risk of a particular result, and in the case of manslaughter the actor must risk causing death to another person. The risk can be a risk of death to another generally; the actor does not have to risk death to a specific individual. Cf. Deskins, 927 P.2d at 373 (finding that defendant engaged in substantial and unjustifiable risk that any car on the road, not just the one he hit, might contain children). Because the element of a “substantial and unjustifiable risk” measures the likelihood and magnitude of the risk disregarded by the actor, any risk of death will meet the requirement that the actor, by his conduct, risks death to another. That is, only a slight risk of death to another person is necessary to meet this element.

IV. APPLICATION OF LEGAL PRINCIPLES TO HALL'S CONDUCT

We first ask whether the prosecution presented sufficient evidence to show that Hall's conduct created a substantial and unjustifiable risk of death. Like other activities that generally do not involve a substantial risk of death, such as driving a car or installing a heater, “skiing too fast for the conditions” is not widely considered behavior that constitutes a high degree of risk. However, we hold that the specific facts in this case support a reasonable inference that Hall created a substantial and unjustifiable risk that he would cause another's death.

Several witnesses stated that Hall was skiing very fast. Allen and the other eyewitnesses all said that Hall was travelling too fast for the conditions, at an excessive rate of speed, and that he was out of control. Allen said that Hall passed him on the slope travelling three times faster than Allen, himself an expert skier. Sandberg presented testimony that Hall was a ski racer, indicating that Hall was trained to attain and ski at much faster speeds than even skilled and experienced recreational skiers. The witnesses said that Hall was travelling straight down the slope at such high speeds that, because of his lack of control, he would not have been able to stop or avoid another person.

In addition to statements of witnesses, the nature of Cobb's injuries and other facts of the collision support the inference that Hall was skiing at an inordinately high speed when he struck Cobb. As Dr. Galloway testified, the severe injuries Cobb sustained were consistent with a person being thrown from a moving automobile during a crash. The coroner said that although he could not estimate Hall's speed from Cobb's injuries, Hall must have been travelling with “a significant amount of speed” to generate sufficient force to cause a basal skull fracture and brain injuries like Cobb's. Additionally, Hall crashed through Lemaner's skis and poles after he struck Cobb—breaking one of the poles in half—indicating a very high speed and great deal of force. Hall came to rest over eighty feet past Cobb's body, further suggesting that Hall was skiing at exceptionally high speeds. Thus, based on the testimony of the witnesses and the coroner's examination of Cobb's body, a reasonable person could conclude that Hall was skiing at very high speeds, thereby creating a risk of serious injury or death in the event of a skier-to-skier collision.

In addition to Hall's excessive speed, Hall was out of control and unable to avoid a collision with another person. All the witnesses said Hall was not traversing the slope and that he was skiing straight down the fall line. Hall was back on his skis, with his ski tips in the air and his arms out to his sides to maintain balance. Allen said that Hall was bounced around by the moguls on the slope rather than skiing in control and managing the bumps. Hall admitted to Deputy Mossness that he first saw Cobb when he was airborne and that he was unable to stop when he saw people below him just before the collision. Hence, in addition to finding that Hall was skiing at a very high rate of speed, a reasonably prudent person could have concluded that Hall was unable to anticipate or avoid a potential collision with a skier on the trail below him.

While skiing ordinarily carries a very low risk of death to other skiers, a reasonable person could have concluded that Hall's excessive speed, lack of control, and improper technique for skiing bumps significantly increased both the likelihood that a collision would occur and the extent of the injuries that might result from such a collision, including the possibility of death, in the event that a person like Cobb unwittingly crossed Hall's downhill path. McWilliam testified that he was aware of only two other deaths from skier collisions on Vail mountain in the past eleven years, but a reasonable person could have determined that Hall's conduct was precisely the type of skiing that risked this rare result.

We next ask whether a reasonable person could have concluded that Hall's creation of a substantial risk of death was unjustified. To the extent that Hall's extremely fast and unsafe skiing created a risk of death, Hall was serving no direct interest other than his own enjoyment. Although the sport often involves high speeds and even moments where a skier is temporarily out of control, a reasonable person could determine that the enjoyment of skiing does not justify skiing at the speeds and with the lack of control Hall exhibited. Thus, a reasonable person could have found that Hall's creation of a substantial risk was unjustifiable.

In addition to our conclusion that a reasonable person could have entertained the belief that Hall's conduct created a substantial and unjustifiable risk, we must ask whether Hall's conduct constituted a “gross deviation” from the standard of care that a reasonable law-abiding person (in this case, a reasonable, law-abiding, trained ski racer and resort employee) would have observed in the circumstances.

As we noted, the nature of the sport involves moments of high speeds and temporary losses of control. However, the General Assembly imposed upon a skier the duty to avoid collisions with any person or object below him. Although this statute may not form the basis of criminal liability, it establishes the minimum standard of care for uphill skiers and, for the purposes of civil negligence suits, creates a rebuttable presumption that the skier is at fault whenever he collides with skiers on the slope below him. A violation of a skier's duty in an extreme fashion, such as here, may be evidence of conduct that constitutes a “gross deviation” from the standard of care imposed by statute for civil negligence. Hall admitted to Deputy Mossness that as he flew off a knoll, he saw people below him but was unable to stop; Hall was travelling so fast and with so little control that he could not possibly have respected his obligation to avoid skiers below him on the slope. Additionally, Hall skied in this manner for some time over a considerable distance, demonstrating that his high speeds and lack of control were not the type of momentary lapse of control or inherent danger associated with skiing. Based on the evidence, a reasonable person could conclude that Hall's conduct was a gross deviation from the standard of care that a reasonable, experienced ski racer would have exercised knowing that other people were on the slope in front of him and that he could not see the area below the knolls and bumps over which he was jumping.

Having determined that Hall's conduct created a substantial and unjustified risk of death that is a gross deviation from the reasonable standard of care under the circumstances, we next ask whether a reasonably prudent person could have entertained the belief that Hall consciously disregarded that risk. Hall is a trained ski racer who had been coached about skiing in control and skiing safely. Further, he was an employee of a ski area and had a great deal of skiing experience. Hall's knowledge and training could give rise to the reasonable inference that he was aware of the possibility that by skiing so fast and out of control he might collide with and kill another skier unless he regained control and slowed down.

In addition to inferring Hall's awareness of the risk from Hall's training and experience, a reasonable person with expert training and knowledge of skiing may have realized that skiing at very high speeds without enough control to stop or avoid a collision could seriously injure or kill another skier. A reasonable expert and experienced skier also might understand that in view of his duties under section 33–44–109, he must maintain enough control to avoid collisions with skiers below him on the slope. Thus, both Hall's subjective knowledge and the awareness that a reasonable person with Hall's background would have had support the inference that Hall consciously disregarded the risk he created by acting despite his awareness of the risk.

Although the risk that he would cause the death of another was probably slight, Hall's conduct created a risk of death. Hall's collision with Cobb involved enough force to kill Cobb and to simulate the type of head injury associated with victims in car accidents. Even though it is a rare occurrence, the court heard testimony that two skiers in the past eleven years died on Vail mountain alone from skier-to-skier collisions. Based on the evidence presented at the preliminary hearing, a reasonable person could conclude that Hall's conduct involved a risk of death.

Thus, interpreting the facts presented in the light most favorable to the prosecution, we hold that a reasonably prudent and cautious person could have entertained the belief that Hall consciously disregarded a substantial and unjustifiable risk that by skiing exceptionally fast and out of control he might collide with and kill another person on the slope.

Obviously, this opinion does not address whether Hall is ultimately guilty of any crime. Rather, we hold only that the People presented sufficient evidence to establish probable cause that Hall committed reckless manslaughter, and the court should have bound Hall's case over for trial.

Hall was ultimately acquitted of reckless homicide but convicted of the lesser crime of criminally negligent homicide and sentenced to six months in jail.

Do you think that after reading Hall you could explain to a lay jury how to determine whether or not an individual was reckless? Why do you think this jury (all of whom were skiers or snowboarders) decided that Hall was not reckless? Do you think Hall's sentence comports with the theories of punishment that we studied earlier in the semester? What arguments would you make for a heavier sentence? A lighter one?

Example based on Constable v. Shimmen, 84 Cr App R 7 (QBD 1986).

Consider the facts of Shimmen’s case, as set forth by the lower court:

The defendant and four friends were outside a shop one evening joking and larking about. One of the friends pushed the defendant who started flailing his arms and legs without making contact with that friend. He was warned that he might one day hurt someone but assured the friend he had everything under control and made as if to strike the plate glass window with his foot. His foot made contact with the window and broke it. The defendant was charged with criminal damage contrary to Section (1) of the Criminal Damage Act of 1971. It was conceded before the justices that he had had no intention of breaking the window but the prosecutor argued that he had acted recklessly. The defendant contended that he had satisfied himself that there was no risk, because of his muscular control and skill in the martial arts, and was, in the circumstances, not reckless.

Isn’t it true that if Shimmen believed he had eliminated all risk he was not reckless? Does that mean that a jury is obligated to believe his claim? If you were the prosecutor in this case, how would you cross-examine Shimmen regarding the sincerity of his belief that he had eliminated all risk through his mastery of the martial arts?

State v. Hazelwood

Alaska Supreme Court

946 P.2d 875 (Alaska 1997)

RABINOWITZ, Justice.

Respondent's conviction stems from the Exxon Valdez incident. On March 24, 1989, Captain Joseph Hazelwood ran his ship aground off Bligh Reef and reported he was "evidently leaking some oil." Eventually, eleven million gallons poured into Prince William Sound. A jury subsequently convicted Hazelwood of negligent discharge of oil.

[On appeal Hazelwood argued that the jury should have been instructed that they could only find him guilty if his conduct involved criminal, rather than ordinary civil, negligence -- Ed.]

The difference between criminal and civil negligence although not major is distinct. Under both standards, a person acts "negligently" when he fails to perceive a substantial and unjustifiable risk that a particular result will occur.

The two tests part ways in their descriptions of the relevant unobserved risk. Under ordinary negligence, "the risk must be of such a nature and degree that the failure to perceive it constitutes a deviation from the standard of care that a reasonable person would observe in the situation.". Criminal negligence requires a greater risk. This standard is met only when the risk is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. Criminal negligence is something more than the slight degree of negligence necessary to support a civil action for damages and is negligence of a degree so gross as to be deserving of punishment.

In essence, then, the criminal negligence standard requires the jury to find negligence so gross as to merit not just damages but also punishment. It does not spill over into recklessness; there is still no requirement that the defendant actually be aware of the risk of harm. However, criminal negligence does require a more culpable mental state than simple, ordinary negligence.

The statute under which Hazelwood was convicted provides in relevant part:

A person may not discharge, cause to be discharged, or permit the discharge of petroleum ... into, or upon the waters or land of the state except in quantities, and at times and locations or under circumstances and conditions as the department may by regulation permit....

Former AS 46.03.790(a) (current AS 46.03.740). At the time of the alleged crime, a person who "negligently" violated this provision was guilty of a class B misdemeanor.

The Court of Appeals concluded that the unadorned use of the word "negligently" created an ambiguity as to whether the statute rests on criminal or ordinary negligence. Relying on its past decisions, the court held that criminal liability may be imposed on the basis of simple or ordinary negligence "only for offenses dealing with heavily regulated activities for which permits or licenses are required."

An appropriate place to begin an explanation for objective fault crimes is with the objections of those who would abolish them altogether. In Jerome Hall, Negligent Behavior Should Be Excluded from Penal Liability, 63 Colo. L.Rev. 632 (1963), Professor Hall challenges the alleged utility of sanctions based on negligence and strict liability. He contends crimes that are not based on subjective awareness of wrongdoing are, by their terms, not addressed to "the extremely important degree of individual freedom, autonomy, and awareness ... expressed in (voluntary) action by a normal adult." Merely negligent harm doers, contends Professor Hall, "have not in the least thought of their duty, their dangerous behavior, or any sanction."

The difficulty with this thesis is that it assumes legal regulations can operate only through the offender's conscious reason. A rebuttal is supplied by Professor Hart:

[T]he connexion between the threat of punishment and subsequent good behavior is not [always] of the rationalistic kind pictured in the guiding-type of case. The threat of punishment is something which causes [the offender] to exert his faculties, rather than something which enters as a reason for conforming to the law when he is deliberating whether to break it or not. It is perhaps more like a goad than a guide. But there seems to me to be nothing disreputable in allowing the law to function in this way, and it is arguable that it functions in this way rather than in the rationalistic way more frequently than is generally allowed.

H.L.A. Hart, Punishment and Responsibility 134 (1968).

The law's "goad," rather than its guide, is also emphasized by Professor LaFave. He asks whether more than civil negligence should be required for a criminal offense, and concludes "that there is no need to choose one answer for all crimes." His primary focus is on deterrence:

The principal policy question is whether the threat of punishment for objective fault will deter people from conducting themselves in such a way as to create risk to others. Though the matter is disputed, it would seem that some people can be made to think, before they act, about the possible consequences of acting, so that the existence of objective-fault crimes does tend to reduce risky conduct... The point is that the legislature might, in the exercise of its police power, require subjective fault for some crimes and objective fault for other crimes.

1 LaFave at 337-38 (footnotes omitted).

It is here, grounded in a theory of reasonable deterrence, that any explanation for objective fault crimes must have its origins. Despite Professor Hall's challenge, it cannot be disputed that the threat of punishment necessarily deters. Even when an offender does not of his own accord realize that his conduct is wrongful, he can in many cases be made to take care. Coercion that causes the offender to pay attention can serve important social aims that would not be achieved by proscriptions that only come into effect when the transgressor recognizes the harm in his or her behavior.

The fulcrum for deciding what level of intent is the absolute minimum for a particular offense is a question of when an expectation of individual conformity is reasonable. Due process under Alaska's Constitution requires that social interests be weighed against those of the individual. While society's interest in obtaining compliance with its regulations is strong, it can never outweigh the individual's interest in freedom from substantial punishment for a violation he or she could not reasonably have been expected to avoid. The threshold question, then, is whether the defendant's conduct is something which society could reasonably expect to deter.

The principle of reasonable deterrence allows the imposition of strict liability in some circumstances. Generally, a separate mental element need not be proved when the failure to abide by a rule is inherently unreasonable. This occurs, for instance, where a person's conduct is hedged in by regulation, such that one may readily assume his or her routine decisions are guided by rules. Thus, strict liability is permitted for heavily regulated industries. Persons operating in rule-laden environments, and whose actions have a substantial impact on public health, safety, or welfare, can reasonably be assumed aware of their governing codes.

Outside of these strict liability exceptions, though, a separate showing of simple civil negligence is both necessary and sufficient under Alaska's Constitution. Negligence, rather than gross negligence, is the minimum, not because we believe it is the necessary element of every prosecutor's case; indeed, all courts have allowed a separate showing of mental culpability to be dispensed with altogether in some circumstances. Rather, the negligence standard is constitutionally permissible because it approximates what the due process guarantee aims at: an assurance that criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter.

This desire to differentiate criminal proceedings from civil proceedings appears to drive the definition of criminal negligence. That standard is typically characterized as "something more" than ordinary negligence. Thus the only consensus and precision available in the definition of criminal negligence is that it is not civil negligence.

This fear of tort standards is unfounded. In response to similar allegations that civil standards do not protect, the Michigan Supreme Court has noted that "[i]t is just as much a violation of the due process clause of the Constitution to take property as it is to take the liberty of a person." In other words, the same constitutional clause which governs the criminal prosecution would also govern a civil proceeding, and it is undisputed that due process is satisfied by the negligence standard in that forum.

We are not persuaded that the simple or ordinary civil negligence standard is inadequate to protect Hazelwood's interests. We conclude that the Superior Court's adoption of an ordinary civil negligence mens rea standard in its instructions to the jury did not constitute a denial of due process under article I, section 7 of the Alaska Constitution.

COMPTON, Chief Justice, dissenting.

. . . 

It is well established that "[m]ere negligence is insufficient to justify an award of punitive damages." Johnson & Higgins of Alaska Inc. v. Blomfield, 907 P.2d 1371, 1376 (Alaska 1995) (holding that punitive damages may only be awarded "where the wrongdoer's conduct can be characterized as outrageous, such as acts done with malice or bad motives or a reckless indifference to the interests of others."). It is difficult to accept the proposition that an action which cannot form the basis for a punitive civil award fairly can be sanctioned with imprisonment. Admittedly, the prohibition of punitive damages for conduct which is merely negligent has not been constitutionalized. However, this prohibition provides yet another strong indication that judicially accepted notions of fairness foreclose the imposition of explicitly punitive measures for conduct which is negligent under a civil standard.

Since I cannot accept the proposition that imprisonment is a fundamentally fair punishment for civil negligence, I cannot support the court's decision to remove all due process barriers to the criminalization of negligent conduct. Issues of substantive due process are issues of public policy at their most basic level. I cannot agree that public policy is served by giving legislators free rein to impose criminal sanctions upon whatever conduct a jury may find to be unreasonable.

Though the majority engages in a fair amount of philosophical analysis, the questions presented by Hazlewood are relatively straightforward:

1) Does the statute require the prosecution to prove regular tort negligence or the higher standard of criminal negligence?

2) If the former, is that consistent with due process?

What does the Court mean when it approvingly cites HLA Hart for the proposition that punishing objective risk creation is a goad to better behavior? Is that the role of the criminal law?

Finally, what do you make of the argument made by the dissenting justice that ordinary tort negligence is insufficient under Washington State law to justify the imposition of punitive damages in a civil case? If that is true, how can it be just to impose a deprivation of liberty in a criminal case based on the same showing?

United States v. Balint

United States Supreme Court

258 U.S. 250 (1922)

MR. CHIEF JUSTICE TAFT delivered the opinion of the court.

Defendants in error were indicted for a violation of the Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785. The indictment charged them with unlawfully selling to another a certain amount of a derivative of opium and a certain amount of a derivative of coca leaves, not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue, contrary to the provisions of § 2 of the act. The defendants demurrer to the indictment on the ground that it failed to charge that they had sold the inhibited drugs knowing them to be such. The statute does not make such knowledge an element of the offense. The District Court sustained the demurrer and quashed the indictment. The correctness of this ruling is the question before us.

While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it, there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70 [1910], in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide "that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells.

The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress. The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs.

Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin.^[1] It is very evident from a reading of  it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion. We think the demurrer to the indictment should have been overruled.

Judgment reversed.

[1]

Sec. 2. That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.

Morissette v. United States

United States Supreme Court

342 U.S. 246 (1952)

MR. JUSTICE JACKSON delivered the opinion of the Court.

On a large tract of uninhabited and untilled land in a wooded and sparsely populated area of Michigan, the Government established a practice bombing range over which the Air Force dropped simulated bombs at ground targets. These bombs consisted of a metal cylinder about forty inches long and eight inches across, filled with sand and enough black powder to cause a smoke puff by which the strike could be located. At various places about the range signs read "Danger—Keep Out— Bombing Range." Nevertheless, the range was known as good deer country and was extensively hunted.

Spent bomb casings were cleared from the targets and thrown into piles "so that they will be out of the way." They were not stacked or piled in any order but were dumped in heaps, some of which had been accumulating for four years or upwards, were exposed to the weather and rusting away.

Morissette, in December of 1948, went hunting in this area but did not get a deer. He thought to meet expenses of the trip by salvaging some of these casings. He loaded three tons of them on his truck and took them to a nearby farm, where they were flattened by driving a tractor over them. After expending this labor and trucking them to market in Flint, he realized $84.

Morissette, by occupation, is a fruit stand operator in summer and a trucker and scrap iron collector in winter. An honorably discharged veteran of World War II, he enjoys a good name among his neighbors and has had no blemish on his record more disreputable than a conviction for reckless driving.

The loading, crushing and transporting of these casings were all in broad daylight, in full view of passers-by, without the slightest effort at concealment. When an investigation was started, Morissette voluntarily, promptly and candidly told the whole story to the authorities, saying that he had no intention of stealing but thought the property was abandoned, unwanted and considered of no value to the Government. He was indicted, however, on the charge that he "did unlawfully, wilfully and knowingly steal and convert" property of the United States of the value of $84, in violation of 18 U. S. C. § 641, which provides that "whoever embezzles, steals, purloins, or knowingly converts" government property is punishable by fine and imprisonment. Morissette was convicted and sentenced to imprisonment for two months or to pay a fine of $200. The Court of Appeals affirmed, one judge dissenting.

The court ruled that this particular offense requires no element of criminal intent. This conclusion was thought to be required by the failure of Congress to express such a requisite and this Court's decisions in United States v. Behrman, 258 U. S. 280, and United States v. Balint, 258 U. S. 250.

Crime, as a compound concept, generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil. As the states codified the common law of crimes, even if their enactments were silent on the subject, their courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation. Courts, with little hesitation or division, found an implication of the requirement as to offenses that were taken over from the common law. The unanimity with which they have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "wilfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes.

However, the Balint and Behrman offenses belong to a category of another character, with very different antecedents and origins. The crimes there involved depend on no mental element but consist only of forbidden acts or omissions. This, while not expressed by the Court, is made clear from examination of a century-old but accelerating tendency, discernible both here and in England, to call into existence new duties and crimes which disregard any ingredient of intent. The industrial revolution multiplied the number of workmen exposed to injury from increasingly powerful and complex mechanisms, driven by freshly discovered sources of energy, requiring higher precautions by employers. Traffic of velocities, volumes and varieties unheard of came to subject the wayfarer to intolerable casualty risks if owners and drivers were not to observe new cares and uniformities of conduct. Congestion of cities and crowding of quarters called for health and welfare regulations undreamed of in simpler times. Wide distribution of goods became an instrument of wide distribution of harm when those who dispersed food, drink, drugs, and even securities, did not comply with reasonable standards of quality, integrity, disclosure and care. Such dangers have engendered increasingly numerous and detailed regulations which heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare.

While many of these duties are sanctioned by a more strict civil liability, lawmakers, whether wisely or not, have sought to make such regulations more effective by invoking criminal sanctions to be applied by the familiar technique of criminal prosecutions and convictions. This has confronted the courts with a multitude of prosecutions, based on statutes or administrative regulations, for what have been aptly called "public welfare offenses." These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.

After the turn of the Century, a new use for crimes without intent appeared when New York enacted numerous and novel regulations of tenement houses, sanctioned by money penalties. Landlords contended that a guilty intent was essential to establish a violation. Judge Cardozo wrote the answer:

"The defendant asks us to test the meaning of this statute by standards applicable to statutes that govern infamous crimes. The analogy, however, is deceptive. The element of conscious wrongdoing, the guilty mind accompanying the guilty act, is associated with the concept of crimes that are punished as infamous. . . . Even there it is not an invariable element. . . . But in the prosecution of minor offenses, there is a wider range of practice and of power. Prosecutions for petty penalties have always constituted in our law a class by themselves. . . . That is true though the prosecution is criminal in form." Tenement House Department v. McDevitt, 215 N. Y. 160, 168 (1915).

Soon, employers advanced the same contention as to violations of regulations prescribed by a new labor law. Judge Cardozo, again for the court, pointed out, as a basis for penalizing violations whether intentional or not, that they were punishable only by fine "moderate in amount," but cautiously added that in sustaining the power so to fine unintended violations "we are not to be understood as sustaining to a like length the power to imprison. We leave that question open." People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25, 32-33 (1918).

Before long, similar questions growing out of federal legislation reached this Court. Its judgments were in harmony with this consensus of state judicial opinion, the existence of which may have led the Court to overlook the need for full exposition of their rationale in the context of federal law. In overruling a contention that there can be no conviction on an indictment which makes no charge of criminal intent but alleges only making of a sale of a narcotic forbidden by law, Chief Justice Taft, wrote:

"While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it . . . , there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. . . ." United States v. Balint, supra, 251-252.

He referred, however, to "regulatory measures in the exercise of what is called the police power where the emphasis  of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se," and drew his citation of supporting authority chiefly from state court cases dealing with regulatory offenses.

On the same day, the Court determined that an offense under the Narcotic Drug Act does not require intent, saying, "If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent." United States v. Behrman, supra, at 288.

Of course, the purpose of every statute would be "obstructed" by requiring a finding of intent, if we assume that it had a purpose to convict without it. Therefore, the obstruction rationale does not help us to learn the purpose of the omission by Congress. And since no federal crime can exist except by force of statute, the reasoning of the Behrman opinion, if read literally, would work far-reaching changes in the composition of all federal crimes. Had such a result been contemplated, it could hardly have escaped mention by a Court which numbered among its members one especially interested and informed concerning the importance of intent in common-law crimes. This might be the more expected since the Behrman holding did call forth his dissent, in which Mr. Justice McReynolds and Mr. Justice Brandeis joined, omitting any such mention.

It was not until recently that the Court took occasion more explicitly to relate abandonment of the ingredient of intent, not merely with considerations of expediency in obtaining convictions, nor with the malum prohibitum classification of the crime, but with the peculiar nature and quality of the offense. We referred to ". . . a now familiar type of legislation whereby penalties serve as effective means of regulation," and continued, "such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." But we warned: "Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting." United States v. Dotterweich, 320 U. S. 277, 280-281, 284.

Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static. The conclusion reached in the Balint and Behrman cases has our approval and adherence for the circumstances to which it was there applied. A quite different question here is whether we will expand the doctrine of crimes without intent to include those charged here.

Stealing, larceny, and its variants and equivalents, were among the earliest offenses known to the law that existed before legislation; they are invasions of rights of property which stir a sense of insecurity in the whole community and arouse public demand for retribution, the penalty is high and, when a sufficient amount is involved, the infamy is that of a felony, which, says Maitland, is ". . . as bad a word as you can give to man or thing." State courts of last resort, on whom fall the heaviest burden of interpreting criminal law in this country, have consistently retained the requirement of intent in larceny-type offenses. If any state has deviated, the exception has neither been called to our attention nor disclosed by our research.

Congress, therefore, omitted any express prescription of criminal intent from the enactment before us in the light of an unbroken course of judicial decision in all constituent states of the Union holding intent inherent in this class of offense, even when not expressed in a statute. Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already so well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense new to general law, for whose definition the courts have no guidance except the Act. Because the offenses before this Court in the Balint and Behrman cases were of this latter class, we cannot accept them as authority for eliminating intent from offenses incorporated from the common law. Nor do exhaustive studies of state court cases disclose any well-considered decisions applying the doctrine of crime without intent to such enacted common-law offenses, although a few deviations are notable as illustrative of the danger inherent in the Government's contentions here.

We hold that mere omission from § 641 of any mention of intent will not be construed as eliminating that element from the crimes denounced.

Balint and Morissette are classic cases on the question of whether silence with regard to mens rea should be read as an intention on the part of the legislature to impose strict liability. It is important to see why the courts in those two contexts come to opposite conclusions on that question. 

As we move to the more modern statutes discussed in Staples and the note on X-citement video, consider the bases on which the Morissette Court distinguished the facts of that case from those of Balint.

Staples v. United States

United States Supreme Court

511 U.S. 600 (1994)

Justice THOMAS delivered the opinion of the Court.

The National Firearms Act (Act), 26 U.S.C. §§ 5801–5872, imposes strict registration requirements on statutorily defined “firearms.” The Act includes within the term “firearm” a machinegun, § 5845(a)(6), and further defines a machinegun as “any weapon which shoots, ... or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger,” § 5845(b). Thus, any fully automatic weapon is a “firearm” within the meaning of the Act. Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. Section 5861(d) makes it a crime, punishable by up to 10 years in prison for any person to possess a firearm that is not properly registered.

Upon executing a search warrant at petitioner's home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR–15 rifle. The AR–15 is the civilian version of the military's M–16 rifle, and is, unless modified, a semiautomatic weapon. The M–16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M–16 parts are interchangeable with those in the AR–15 and can be used to convert the AR–15 into an automatic weapon. No doubt to inhibit such conversions, the AR–15 is manufactured with a metal stop on its receiver that will prevent an M–16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner's rifle, however, had been filed away, and the rifle had been assembled with an M–16 selector switch and several other M–16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR–15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).

At trial, BATF agents testified that when the AR–15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered as required by § 5861(d). Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR–15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove beyond a reasonable doubt that the defendant “knew that the gun would fire fully automatically.”

The District Court rejected petitioner's proposed instruction and instead charged the jury as follows:

“The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation.”

Petitioner was convicted and sentenced to five years' probation and a $5,000 fine.

Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a “firearm” under the Act is a question of statutory construction. As we observed in Liparota v. United States, 471 U.S. 419 (1985), “[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute.” Thus, we have long recognized that determining the mental state required for the commission of a federal crime requires “construction of the statute and ... inference of the intent of Congress.”

The language of the statute, the starting place in our inquiry, provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that “[i]t shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. On the contrary, we must construe the statute in light of the background rules of the common law.

There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule requiring mens rea has been “followed in regard to statutory crimes even where the statutory definition did not in terms include it.” Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.

According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government's view, this case fits in a line of precedent concerning what we have termed “public welfare” or “regulatory” offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.

For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were “narcotics” within the ambit of the statute. Cf. United States v. Dotterweich, 320 U.S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of adulterated or misbranded drugs did not require knowledge that the items were misbranded or adulterated). As we explained in Dotterweich, Balint dealt with “a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing.” 320 U.S., at 280–281.

Such public welfare offenses have been created by Congress, and recognized by this Court, in “limited circumstances.” Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him “in responsible relation to a public danger,” he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to “ascertain at his peril whether [his conduct] comes within the inhibition of the statute.” Balint, supra, 258 U.S., at 254. Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements.

The Government argues that § 5861(d) defines precisely the sort of regulatory offense described in Balint. In this view, all guns, whether or not they are statutory “firearms,” are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court's instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a “firearm” in the ordinary sense of the term.

The Government seeks support for its position from our decision in United States v. Freed, 401 U.S. 601 (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d). The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. To be sure, in deciding that mens rea was not required with respect to that element of the offense, we suggested that the Act “is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Grenades, we explained, “are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint.” But that reasoning provides little support for dispensing with mens rea in this case.

[T]he Government urges that Freed's logic applies because guns, no less than grenades, are highly dangerous devices that should alert their owners to the probability of regulation. But the gap between Freed and this case is too wide to bridge. In glossing over the distinction between grenades and guns, the Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct.” In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a “food stamp can hardly be compared to a hand grenade.”

Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. In fact, in Freed we construed § 5861(d) under the assumption that “one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that “one would hardly be surprised to learn that owning a gun is not an innocent act.” That proposition is simply not supported by common experience. Guns in general are not “deleterious devices or products or obnoxious waste materials,” that put their owners on notice that they stand “in responsible relation to a public danger.”

The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices. Under this view, it seems that Liparota's concern for criminalizing ostensibly innocuous conduct is inapplicable whenever an item is sufficiently dangerous—that is, dangerousness alone should alert an individual to probable regulation and justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item is “dangerous,” in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to regulation—as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades in Freed. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon's characteristics.

On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements. But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of American homes contain at least one firearm of some sort, and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.

If we were to accept as a general rule the Government's suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed “dangerous” devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle's emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.

Here, there can be little doubt that, as in Liparota, the Government's construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their possession—makes their actions entirely innocent. The Government does not dispute the contention that virtually any semiautomatic weapon may be converted, either by internal modification or, in some cases, simply by wear and tear, into a machinegun within the meaning of the Act. Such a gun may give no externally visible indication that it is fully automatic. But in the Government's view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun's firing capabilities, if the gun turns out to be an automatic.

We concur in the Fifth Circuit's conclusion on this point: “It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible ten-year term of imprisonment if ... what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon.” As we noted in Morissette, the “purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction.” We are reluctant to impute that purpose to Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).

The potentially harsh penalty attached to the violation of § 5861(d)—up to 10 years' imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary.

Close adherence to the early cases described above might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea.

We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note only that where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.

In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR–15 that brought it within the scope of the Act.

Title 18 U.S.C. § 2252 (1988 ed. and Supp. V) provides, in relevant part:

(a) Any person who—

(1) knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction, if—

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

(2) knowingly receives, or distributes, any visual depiction that has been mailed, or has been shipped or transported in interstate or foreign commerce, or which contains materials which have been mailed or so shipped or transported, by any means including by computer, or knowingly reproduces any visual depiction for distribution in interstate or foreign commerce or through the mails, if—

(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and

(B) such visual depiction is of such conduct;

....

shall be punished [by up to 10 years in prison].

Must the government prove that the defendant knew that the images he sent through the mails were of minors engaging in sexual activity? Or is it sufficient to show that she knew that she was shipping visual depictions and that those depictions were in fact of minors engaged in sexual activity?

See, United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (concluding that, although “the most grammatical reading of the statute” would apply strict liability on that point, public policy and legislative history suggest that was not Congress’s intent).

§ 2.04 Ignorance or Mistake.

(1) Ignorance or mistake as to a matter of fact or law is a defense if:

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or

(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

Comment to Section 2.04(1)

Subsection (1) states the conventional position under which the significance of ignorance by the defendant of a matter of fact or law, or a mistake as to such matters, is determined by the mental state required for the commission of the offense involved. Thus, ignorance or mistake is a defense when it negates the existence of a state of mind that is essential to the commission of an offense, or when it establishes a state of mind that constitutes a defense under the rule of law relating to defenses.

To put the matter as this subsection does is not to say anything that would not otherwise be true, even if no provision on the subject were made. [T]he rule relating to mistake “is not a new rule; and the law could be stated equally well without reference to mistake.”

Perhaps the greatest accomplishment of the Model Penal Code authors was their streamlining (you could say elimination) of the concept of mistake in criminal law. In creating these materials, I encourage you to accept the gift that the MPC has given us.

The Code changed all this by stating, quite clearly, what was probably always true: mistake provides a defense if, and only if, it negates the mens rea required by statute. That is, a mistake provides a defense if it demonstrates that the defendant did not have the mens rea required by statute. That’s it.

This revolution is so profound that it’s easy to miss on first reading. (As the commentary states, this principle is so basic that nothing is changed by introducing the concept of mistake into the discussion of mens rea.) Whether one is in a Model Penal Code jurisdiction or not, the task remains the same: Determine what mens rea applies to each element of the offense and then ask a jury whether the prosecution has proven beyond a reasonable doubt that the defendant committed all the elements of the offense. Sometimes the evidence will convince the jury beyond a reasonable doubt; sometimes the prosecution will not have presented enough evidence of the defendant's mental state to allow a jury to convict; sometimes the defendant's assertion of a mistake defense will convince a jury and they will conclude that he did not have the mens rea to commit the offense.

To see the advantages of the MPC approach, consider the classic case of Regina v. Prince. Prince was charged under an archaic statute making it a crime to take an underage girl away from her parents. No mens rea was set forth in the statute; the defendant said that he did not know the girl was underage. The English High Court discussed law and morality at some length in concluding that the defendant was up to something he knew he ought not to be doing and that his mistake, even if it was made in good faith, should not provide him a defense.

The modern approach to a case like Prince would be clearer. We look at the statute, which did not contain any mens rea language, and ask whether the intent of the legislature was to make this a strict liability offense. If so, no mistake with regard to age will provide a defense. Because no mens rea need be proven, no mistake can show that the defendant lacked the mens rea required by statute. By contrast, if the court applied the MPC and read in recklessness with regard to age, the government would have to show that the defendant was aware of a risk that the girl was under age but ran off with her nonetheless. What evidence might help the government make that showing?

An approach that some courts and legislatures have adopted to deal with mens rea and mistake is to divide crimes into general intent crimes and specific intent crimes. General intent crimes require just that the defendant intend his conduct, not that he have some further intent regarding the outcome of his actions. By contrast, specific intent crimes do require such additional intent. So, for example, trespass is a general intent crime. It requires just that the defendant intentionally entered another's property without permission. Burglary is a specific intent crime. It requires not just that the defendant intentionally entered another's property, but also that he intend some additional harm, in most cases the commission of a felony.

The traditional rule was that mistake was a defense to specific intent crimes but not general intent crimes.

I find both the idea of general and specific intent and the mistake rule that went along with this distinction to be unhelpful. On the one hand, there are lots of crimes that don't fit neatly into one category or another. So, for example, the statute in Cunningham that required (as read by the court) that the defendant recklessly cause harm to Ms. Wade did not have an intent requirement beyond the intent to commit the crime, but it did have a mens rea beyond the the intent to engage in the harmful activity, namely that the defendant be reckless with regard to harming another.

Under the MPC, elemental approach we would ask whether his claim of ignorance or mistake showed that he was not reckless. As stated in the last note, I believe that the MPC approach simply makes explicit what most courts are already doing.

I mention general and specific intent here because some older statutes and cases use the terms and I wanted you to have some exposure to them. However, because I believe these terms tend to muddy rather than clarify, I will neither use them in class nor test you on them.

Consider the facts of the Colorado case People v. Donnie Joe Garcia. Garcia was convicted of burglary of a dwelling. The evidence showed that Garcia was discovered by the victim in the hallway of his residence and that $52 was missing from the victim's table. The evidence also showed that the residence was located in a commercial area.

D was charged under a statute that read:

A person commits second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.

Second degree burglary is a class 3 felony if:

It is a burglary of a dwelling

Defendant made two claims relevant to our analysis. First, he argued that he believed he had entered a commercial building open to the public and therefore did not commit second degree burglary at all. Second, he argued that he did not know the building that he entered was a dwelling and therefore should not be convicted of the class 3 felony burglary of a dwelling.

The appellate court accepted the first of these arguments but rejected the second. Why? Would we get the same result under the Model Penal Code?

Note on Legal Elements

Recall that the MPC states that a mistake of fact or law provides a defense when it negates the mens rea required by statute. How does this work, exactly? And how does that statement interact with the maxim that ignorance of the law is no excuse?

The commentary quoted in the previous section makes clear that the appropriate place for a mistake of law defense is when the defendant is mistaken about a legal element rather than the existence or meaning of the statute under which he is charged. But what does that mean?

In People v. Marrero, 69 N.Y.2d 382 (1987), the defendant was a correctional officer at a federal prison in Connecticut who was arrested with a pistol in a Manhattan nightclub. He was charged with illegal possession of that weapon under New York state law. He objected that as a federal correctional officer, he was entitled to carry a concealed weapon under a separate New York statute that exempted from the concealed carry prohibition “correction officers of any state correction facility or of any penal correctional institution.” (emphasis added)

The trial court concluded that Marrero had misread the statute and also refused to instruct the jury on mistake of law based on what it concluded was Marrero’s erroneous reading of the statute. The state high court, ultimately, agreed. 

Marrero was not mistaken about the existence or meaning of the statute under which he was charged. He knew that it prohibited non-law enforcement personnel from carrying guns in public. What he was mistaken about was who was a law enforcement officer. In concluding that his (quite reasonable) mistake regarding this legal eelement did not afford him a defense, the court necessarily (but not explicitly) must have concluded that the statute required no mens rea with regard to whether Marrero was a peace officer. That is, it concluded that it was not a defense to carry a gun under the reasonable mistaken belief that he was entitled to do so. 

A number of cases are more explicit about the matter.

For example in Regina v. David Smith, 2 Q.B. 354 (1974) the defendant was charged under a statute that punished: “A person who, without lawful excuse destroys or damages any property belonging to another intending to destroy such property or being reckless as to whether any such property would be destroyed or damaged.” The defendant had damaged floor panels and floor boards that he had installed in his rental unit in order to remove the wires he had placed behind them when installing his stereo system. Although the trial court informed the jury that the defendant’s (incorrect) belief that the flooring was his own was not relevant, the appellate court reversed: “[i]n our judgment no offence is committed under this section if a person destroys or causes damage to property belong to another if he does so in the honest though mistaken belief that he property is his own.”

What was Smith mistaken about? Did he believe that he had the right to destroy another's property, or was he mistaken regarding whose property he was destroying? What mens rea did the Smith court read into the statute with regard to ownership of the property?

Similarly in State v. Woods, 179 A. 1. (Vt. 1935) Ms. Woods was charged under a statute that prohibited “A man with another man’s wife, or a man with another woman’s husband, found in bed together, under circumstances affording presumption of an illicit intention.” Ms. Woods had traveled with Shuffelt, the man with whom she was eventually found in bed, to Reno, Nevada where he divorced his first wife and then married Ms. Woods. Unfortunately for Ms. Woods, the divorce was ineffective as neither Suffelt nor his wife was a Nevada resident. Thus, Ms. Woods believed, reasonably, though wrongly, that the man she was lying with was her husband rather than “another woman’s husband.” The Court, finding that public policy against “attempted foreign divorces” would be eviscerated by claims of ignorance, disagreed: “When it is proved that the parties were found in bed together under circumstances affording a presumption of an intention to commit the act charged in the indictment or information, then the requirement of the statute is met and ignorance of the law cannot be urged as a defense.”

What was Woods mistaken about? Did she believe that it was legal to go to bed with another woman's husband? (That might have been a reasonable conclusion for her to draw, but that's not the claim she made?) She was mistaken regarding whether the man with whom she was found in bed was married to another person. Do you see what makes that a mistake of law? What would a mistake of fact in that regard look like? What mens rea did the Woods court read into the statute with regard to whether one’s bed companion is married to another?

Section 2.02(9) Culpability as to Illegality of Conduct.

Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning, or application of the law defining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.

Culpability as to Illegality of Conduct

Subsection (9) states the conventional position that knowledge of the existence, meaning, or application of the law determining the elements of an offense is not an element of that offense, except in the unusual situations where the law defining the offense so provides.

It should be noted that the general principle that ignorance or mistake of law is no excuse is greatly overstated; it has no application for example when the circumstances made material by the definition of the offense include a legal element. Thus it is immaterial in theft when claim of right is adduced in defense, that the claim involves a legal judgment as to the right of property. Claim of right is a defense because the property must belong to someone else for the theft to occur and the defendant must have culpable awareness of that fact. Insofar as this point is involved, there is no need to state a special principle; the legal element involved is simply an aspect of the attendant circumstances, with respect to which knowledge, recklessness, or negligence, as the case may be, is required for culpability by Subsections (1) and (3). The law involved is not the law defining the offense; it is some other legal rule that characterizes the attendant circumstances that are material to the offense.

The proper arena for the principle that ignorance or mistake of law does not afford an excuse is thus with respect to the particular law that sets forth the definition of the crime in question. It is knowledge of that law that is normally not a part of the crime, and it is ignorance or mistake as to that law that is denied defensive significance by this subsection of the Code and by the traditional common law approach to the issue.

Cheek v. United States

United States Supreme Court

498 U.S. 192 (1991)

Justice WHITE delivered the opinion of the Court.

Title 26 § 7201 of the United States Code provides that any person “who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof” shall be guilty of a felony. Under 26 U. S. C. § 7203, “[a]ny person required under this title ... or by regulations made under authority thereof to make a return . . . who willfully fails to . . . make such return” shall be guilty of a misdemeanor. This case turns on the meaning of the word “willfully” as used in §§7201 and 7203.

I.

Petitioner John L. Cheek has been a pilot for American Airlines since 1973. He filed federal income tax returns through 1979 but thereafter ceased to file returns. He also claimed an increasing number of withholding allowances — eventually claiming 60 allowances by mid-1980 — and for the years 1981 to 1984 indicated on his W-4 forms that he was exempt from federal income taxes. In 1983, petitioner unsuccessfully sought a refund of all tax withheld by his employer in 1982. Petitioner’s income during this period at all times far exceeded the minimum necessary to trigger the statutory filing requirement.

As a result of his activities, petitioner was indicted for 10 violations of federal law. He was charged with six counts of willfully failing to file a federal income tax return for the years 1980, 1981, and 1983 through 1986, in violation of 26 U.S.C. § 7203. He was further charged with three counts of willfully attempting to evade his income taxes for the years 1980, 1981, and 1983 in violation of § 7201. In those years, American Airlines withheld substantially less than the amount of tax petitioner owed because of the numerous allowances and exempt status he claimed on his W-4 forms. The tax offenses with which petitioner was charged are specific intent crimes that require the defendant to have acted willfully.

In the course of its instructions, the trial court advised the jury that to prove “willfulness” the Government must prove the voluntary and intentional violation of a known legal duty, a burden that could not be proved by showing mistake, ignorance, or negligence. The court further advised the jury that an objectively reasonable good-faith misunderstanding of the law would negate willfulness, but mere disagreement with the law would not. The court described Cheek’s beliefs about the income tax system and instructed the jury that if it found that Cheek “honestly and reasonably believed that he was not required to pay income taxes or to file tax returns” a not guilty verdict should be returned.

After several hours of deliberation, the jury sent a note to the judge that stated in part:

“We have a basic disagreement between some of us as to if Mr. Cheek honestly & reasonably believed that he was not required to pay income taxes.

Page 32 [the relevant jury instruction] discusses good faith misunderstanding & disagreement. Is there any additional clarification you can give us on this point?”

The District Judge responded with a supplemental instruction containing the following statements:

“[A] person’s opinion that the tax laws violate his constitutional rights does not constitute a good faith misunderstanding of the law. Furthermore, a person’s disagreement with the government’s tax collection systems and policies does not constitute a good faith misunderstanding of the law.”

At the end of the first day of deliberation, the jury sent out another note saying that it still could not reach a verdict because “[w]e are divided on the issue as to if Mr. Cheek honestly & reasonably believed that he was not required to pay income tax.” When the jury resumed its deliberations, the District Judge gave the jury an additional instruction. This instruction stated in part that “[a]n honest but unreasonable belief is not a defense and does not negate willfulness” and that “[a]dvice or research resulting in the conclusion that wages of a privately employed person are not income or that the tax laws are unconstitutional is not objectively reasonable and cannot serve as the basis for a good faith misunderstanding of the law defense.” The court also instructed the jury that “[p]ersistent refusal to acknowledge the law does not constitute a good faith misunderstanding of the law.” Approximately two hours later, the jury returned a verdict finding petitioner guilty on all counts.

II.

The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes.

The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term “willfully” as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws.

III.

Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty. We deal first with the case where the issue is whether the defendant knew of the duty purportedly imposed by the provision of the statute or regulation he is accused of violating, a case in which there is no claim that the provision at issue is invalid. In such a case, if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge component of the willfulness requirement. But carrying this burden requires negating a defendant’s claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws. This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist. In the end, the issue is whether, based on all the evidence, the Government has proved that the defendant was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunderstanding and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable.

In this case, if Cheek asserted that he truly believed that the Internal Revenue Code did not purport to treat wages as income, and the jury believed him, the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief. Of course, in deciding whether to credit Cheek’s good-faith belief claim, the jury would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and to treat wages as income, including evidence showing his awareness of the relevant provisions of the Code or regulations, of court decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal Revenue Service, or of any contents of the personal income tax return forms and accompanying instructions that made it plain that wages should be returned as income.

It was therefore error to instruct the jury to disregard evidence of Cheek’s understanding that, within the meaning of the tax laws, he was not a person required to file a return or to pay income taxes and that wages are not taxable income, as incredible as such misunderstandings of and beliefs about the law might be. Of course, the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws and will find that the Government has carried its burden of proving knowledge.

Cheek asserted in the trial court that he should be acquitted because he believed in good faith that the income tax law is unconstitutional as applied to him and thus could not legally impose any duty upon him of which he should have been aware. Such a submission is unsound….

Claims that some of the provisions of the tax code are unconstitutional are submissions of a different order. They do not arise from innocent mistakes caused by the complexity of the Internal Revenue Code. Rather, they reveal full knowledge of the provisions at issue and a studied conclusion, however wrong, that those provisions are invalid and unenforceable. Thus in this case, Cheek paid his taxes for years, but after attending various seminars and based on his own study, he concluded that the income tax laws could not constitutionally require him to pay a tax.

We do not believe that Congress contemplated that such a taxpayer, without risking criminal prosecution, could ignore the duties imposed upon him by the Internal Revenue Code and refuse to utilize the mechanisms provided by Congress to present his claims of invalidity to the courts and to abide by their decisions. There is no doubt that Cheek, from year to year, was free to pay the tax that the law purported to require, file for a refund and, if denied, present his claims of invalidity, constitutional or otherwise, to the courts. Also, without paying the tax, he could have challenged claims of tax deficiencies in the Tax Court, with the right to appeal to a higher court if unsuccessful. Cheek took neither course in some years, and when he did was unwilling to accept the outcome. As we see it, he is in no position to claim that his good-faith belief about the validity of the Internal Revenue Code negates willfulness or provides a defense to criminal prosecution under §§ 7201 and 7203. Of course, Cheek was free in this very case to present his claims of invalidity and have them adjudicated, but like defendants in criminal cases in other contexts, who “willfully” refuse to comply with the duties placed upon them by the law, he must take the risk of being wrong.

We thus hold that in a case like this, a defendant’s views about the validity of the tax statutes are irrelevant to the issue of willfulness and need not be heard by the jury, and, if they are, an instruction to disregard them would be proper. For this purpose, it makes no difference whether the claims of invalidity are frivolous or have substance. It was therefore not error in this case for the District Judge to instruct the jury not to consider Cheek’s claims that the tax laws were unconstitutional. However, it was error for the court to instruct the jury that petitioner’s asserted beliefs that wages are not income and that he was not a taxpayer within the meaning of the Internal Revenue Code should not be considered by the jury in determining whether Cheek had acted willfully.

Justice BLACKMUN, with whom Justice MARSHALL joins, dissenting.

It seems to me that we are concerned in this case not with “the complexity of the tax laws,” but with the income tax law in its most elementary and basic aspect: Is a wage earner a taxpayer and are wages income?

The Court acknowledges that the conclusively established standard for willfulness under the applicable statutes is the “voluntary, intentional violation of a known legal duty.” That being so, it is incomprehensible to me how, in this day, more than 70 years after the institution of our present federal income tax system with the passage of the Income Tax Act of 1913 any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections. One might note in passing that this particular taxpayer, after all, was a licensed pilot for one of our major commercial airlines; he presumably was a person of at least minimum intellectual competence.

The District Court’s instruction that an objectively reasonable and good-faith misunderstanding of the law negates willfulness lends further, rather than less, protection to this defendant, for it adds an additional hurdle for the prosecution to overcome. Petitioner should be grateful for this further protection, rather than be opposed to it.

This Court’s opinion today, I fear, will encourage taxpayers to cling to frivolous views of the law in the hope of convincing a jury of their sincerity. If that ensues, I suspect we have gone beyond the limits of common sense.

Liparota v. United States

United States Supreme Court

471 U.S. 419 (1985)

Justice BRENNAN delivered the opinion of the Court.

The federal statute governing food stamp fraud provides that “whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations” is subject to a fine and imprisonment. 78 Stat. 708, as amended, 7 U.S.C. § 2024(b)(1). The question presented is whether in a prosecution under this provision the Government must prove that the defendant knew that he was acting in a manner not authorized by statute or regulations.

Petitioner Frank Liparota was the co-owner with his brother of Moon’s Sandwich Shop in Chicago, Illinois. He was indicted for acquiring and possessing food stamps in violation of § 2024(b)(1). The Department of Agriculture had not authorized petitioner’s restaurant to accept food stamps. At trial, the Government proved that petitioner on three occasions purchased food stamps from an undercover Department of Agriculture agent for substantially less than their face value. On the first occasion, the agent informed petitioner that she had $195 worth of food stamps to sell. The agent then accepted petitioner’s offer of $150 and consummated the transaction in a back room of the restaurant with petitioner’s brother. A similar transaction occurred one week later, in which the agent sold $500 worth of coupons for $350. Approximately one month later, petitioner bought $500 worth of food stamps from the agent for $300.

The controversy between the parties concerns the mental state, if any, that the Government must show in proving that petitioner acted “in any manner not authorized by [the statute] or the regulations.” The Government argues that petitioner violated the statute if he knew that he acquired or possessed food stamps and if in fact that acquisition or possession was in a manner not authorized by statute or regulations. According to the Government, no mens rea, or “evil-meaning mind,” Morissette v. United States, 342 U. S. 246, 251 (1952), is necessary for conviction. Petitioner claims that the Government’s interpretation, by dispensing with mens rea, dispenses with the only morally blameworthy element in the definition of the crime. To avoid this allegedly untoward result, he claims that an individual violates the statute if he knows that he has acquired or possessed food stamps and if he also knows that he has done so in an unauthorized manner. Our task is to determine which meaning Congress intended.

Absent indication of contrary purpose in the language or legislative history of the statute, we believe that § 2024(b)(1) requires a showing that the defendant knew his conduct to be unauthorized by statute or regulations. “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Thus, in United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978), we noted that “[c]ertainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement” and that criminal offenses requiring no mens rea have a “generally disfavored status.” Similarly, in this case, the failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law.

This construction is particularly appropriate where, as here, to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct. For instance, § 2024(b)(1) declares it criminal to use, transfer, acquire, alter, or possess food stamps in any manner not authorized by statute or regulations. The statute provides further that “[c]oupons issued to eligible households shall be used by them only to purchase food in retail food stores which have been approved for participation in the food stamp program at prices prevailing in such stores." 7 U.S.C. § 2016(b) (emphasis added); see also 7 CFR § 274.10(a) (1985). This seems to be the only authorized use. A strict reading of the statute with no knowledge-of-illegality requirement would thus render criminal a food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants. Such a reading would also render criminal a nonrecipient of food stamps who “possessed” stamps because he was mistakenly sent them through the mail due to administrative error, “altered” them by tearing them up, and “transferred” them by throwing them away. Of course, Congress could have intended that this broad range of conduct be made illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid such harsh results. However, given the paucity of material suggesting that Congress did so intend, we are reluctant to adopt such a sweeping interpretation.

In addition, requiring mens rea is in keeping with our longstanding recognition of the principle that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Application of the rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal and strikes the appropriate balance between the legislature, the prosecutor, and the court in defining criminal liability. See United States v. Bass, supra, at 348 (“[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity”). Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored interpretive guideline when the congressional purpose is unclear. In the instant case, the rule directly supports petitioner’s contention that the Government must prove knowledge of illegality to convict him under § 2024(b)(1).

We hold that in a prosecution for violation of § 2024(b)(1), the Government must prove that the defendant knew that his acquisition or possession of food stamps was in a manner unauthorized by statute or regulations. This holding does not put an unduly heavy burden on the Government in prosecuting violators of § 2024(b)(1). To prove that petitioner knew that his acquisition or possession of food stamps was unauthorized, for example, the Government need not show that he had knowledge of specific regulations governing food stamp acquisition or possession. Nor must the Government introduce any extraordinary evidence that would conclusively demonstrate petitioner’s state of mind. Rather, as in any other criminal prosecution requiring mens rea, the Government may prove by reference to facts and circumstances surrounding the case that petitioner knew that his conduct was unauthorized or illegal.

Reversed.

Justice Powell took no part in the consideration or decision of this case.

Justice White, with whom The Chief Justice joins, dissenting.

In relying on the “background assumption of our criminal law” that mens rea is required, the Court ignores the equally well founded assumption that ignorance of the law is no excuse. It is “the conventional position that knowledge of the existence, meaning or application of the law determining the elements of an offense is not an element of that offense . . .” Model Penal Code.

This Court’s prior cases indicate that a statutory requirement of a “knowing violation” does not supersede this principle. For example, under the statute at issue in United States v. International Minerals & Chemical Corp., 402 U. S. 558 (1971), the Interstate Commerce Commission was authorized to promulgate regulations regarding the transportation of corrosive liquids, and it was a crime to “knowingly violat[e] any such regulation.” 18 U.S.C. § 834(f) (1970). Viewing the word “regulations” as “a shorthand designation for specific acts or omissions which violate the Act,” we adhered to the traditional rule that ignorance of the law is not a defense. The violation had to be “knowing” in that the defendant had to know that he was transporting corrosive liquids and not, for example, merely water. But there was no requirement that he be aware that he was violating a particular regulation. Similarly, in this case the phrase “in any manner not authorized by” the statute or regulations is a shorthand incorporation of a variety of legal requirements. To be convicted, a defendant must have been aware of what he was doing, but not that it was illegal.

In Boyce Motor Lines, Inc. v. United States, 342 U.S. 337 (1952), the Court considered a statute that punished anyone who “knowingly violates” a regulation requiring trucks transporting dangerous items to avoid congested areas where possible. In rejecting a vagueness challenge, the Court read “knowingly” to mean not that the driver had to be aware of the regulation, but that he had to know a safer alternative route was available. Likewise, in construing 18 U. S. C. § 1461, which punishes “[w]hoever knowingly uses the mails for the mailing ... of anything declared by this section or section 3001(e) of Title 39 to be nonmailable,” we held that the defendant need not have known that the materials were nonmailable. Hamling v. United States, 418 U.S. 87, 120-124 (1974). “To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law,” and was not required by the statute.

In each of these cases, the statutory language lent itself to the approach adopted today if anything more readily than does § 2024(b)(1). I would read § 2024(b)(1) like those statutes, to require awareness of only the relevant aspects of one’s conduct rendering it illegal, not the fact of illegality. This reading does not abandon the “background assumption” of mens rea by creating a strict-liability offense, and is consistent with the equally important background assumption that ignorance of the law is not a defense.

I wholly agree that “[t]he contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.” Morissette v. United States, 342 U. S. 246, 250 (1952). But the holding of the court below is not at all inconsistent with that longstanding and important principle. Petitioner’s conduct was intentional; the jury found that petitioner “realized what he was doing, and was aware of the nature of his conduct, and did not act through ignorance, mistake, or accident.” Whether he knew which regulation he violated is beside the point.

Ratzlaf v. United States

United States Supreme Court

510 U.S. 135 (1994)

Justice GINSBURG delivered the opinion of the Court.

I

On the evening of October 20, 1988, defendant-petitioner Waldemar Ratzlaf ran up a debt of $160,000 playing blackjack at the High Sierra Casino in Reno, Nevada. The casino gave him one week to pay. On the due date, Ratzlaf returned to the casino with cash of $100,000 in hand. A casino official informed Ratzlaf that all transactions involving more than $10,000 in cash had to be reported to state and federal authorities. The official added that the casino could accept a cashier’s check for the full amount due without triggering any reporting requirement. The casino helpfully placed a limousine at Ratzlaf’s disposal, and assigned an employee to accompany him to banks in the vicinity. Informed that banks, too, are required to report cash transactions in excess of $10,000, Ratzlaf purchased cashier’s checks, each for less than $10,000 and each from a different bank. He delivered these checks to the High Sierra Casino.

Based on this endeavor, Ratzlaf was charged with “structuring transactions” to evade the banks’ obligation to report cash transactions exceeding $10,000; this conduct, the indictment alleged, violated 31 U.S.C. §§ 5322(a) and 5324(3). The trial judge instructed the jury that the Government had to prove defendant’s knowledge of the banks’ reporting obligation and his attempt to evade that obligation, but did not have to prove defendant knew the structuring was unlawful. Ratzlaf was convicted, fined, and sentenced to prison.

Ratzlaf maintained on appeal that he could not be convicted of “willfully violating” the antistructuring law solely on the basis of his knowledge that a financial institution must report currency transactions in excess of $10,000 and his intention to avoid such reporting. To gain a conviction for “willful” conduct, he asserted, the Government must prove he was aware of the illegality of the “structuring” in which he engaged. The Ninth Circuit upheld the trial court’s construction of the legislation and affirmed Ratzlaf’s conviction. 976 F. 2d 1280 (1992). We granted certiorari and now conclude that, to give effect to the statutory “willfulness” specification, the Government had to prove Ratzlaf knew the structuring he undertook was unlawful. We therefore reverse the judgment of the Court of Appeals.

II

A

Congress enacted the Currency and Foreign Transactions Reporting Act (Bank Secrecy Act) in 1970, Pub. L. 91-2508, Tit. II, 84 Stat. 1118, in response to increasing use of banks and other institutions as financial intermediaries by persons engaged in criminal activity. The Act imposes a variety of reporting requirements on individuals and institutions regarding foreign and domestic financial transactions. See 31 U.S.C. §§ 5311-5325. The reporting requirement relevant here, § 5313(a), applies to domestic financial transactions. Section 5313(a) reads:

“When a domestic financial institution is involved in a transaction for the payment, receipt, or transfer of United States coins or currency (or other monetary instruments the Secretary of the Treasury prescribes), in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation, the institution and any other participant in the transaction the Secretary may prescribe shall file a report on the transaction at the time and in the way the Secretary prescribes...”

To deter circumvention of this reporting requirement, Congress enacted an antistructuring provision, 31 U.S.C. § 5324, as part of the Money Laundering Control Act of 1986, Pub. L. 99-570, Tit. I, Subtit. H, § 1354(a), 100 Stat. 3207-22.4 Section 5324 which Ratzlaf is charged with “willfully violating,” reads:

“No person shall for the purpose of evading the reporting requirements of section 5313(a) with respect to such transaction—

“(3) structure or assist in structuring, or attempt to structure or assist in structuring, any transaction with one or more domestic financial institutions.”

The criminal enforcement provision at issue, 31 U.S.C. § 5322(a), sets out penalties for “[a] person willfully violating,” inter alia, the antistructuring provision. Section 5322(a) reads:

“A person willfully violating this subchapter [31 U.S.C. §5311 et seg. or a regulation prescribed under this subchapter (except section 5315 of this title or a regulation prescribed under section 5315) shall be fined not more than $250,000, or [imprisoned for] not more than five years, or both.”

B

Section 5324 forbids structuring transactions with a “purpose of evading the reporting requirements of section 5313(a).” Ratzlaf admits that he structured cash transactions, and that he did so with knowledge of, and a purpose to avoid, the banks’ duty to report currency transactions in excess of $10,000. The statutory formulation (§ 5322) under which Ratzlaf was prosecuted, however, calls for proof of “willful[ness]” on the actor’s part. The trial judge in Ratzlaf’s case, with the Ninth Circuit’s approbation, treated § 5322(a)’s “willfulness” requirement essentially as surplus-age — as words of no consequence. Judges should hesitate so to treat statutory terms in any setting, and resistance should be heightened when the words describe an element of a criminal offense. See Pennsylvania Dept. of Public Welfare v. Davenport, 495 U. S. 552, 562 (1990) (expressing “deep reluctance” to interpret statutory provisions “so as to render superfluous other provisions in the same enactment”) (citation omitted); cf. Potter v. United States, 155 U. S. 438, 446 (1894) (word “wilful” used to describe certain offenses but not others in same statute “cannot be regarded as mere surplusage; it means something”).

“Willful,” this Court has recognized, is a “word of many meanings,” and “its construction [is] often . . . influenced by its context.” Spies v. United States, 317 U. S. 492, 497 (1943). Accordingly, we view §§ 5322(a) and 5324(3) mindful of the complex of provisions in which they are embedded. In this light, we count it significant that § 5322(a)’s omnibus “willfulness” requirement, when applied to other provisions in the same subchapter, consistently has been read by the Courts of Appeals to require both “knowledge of the reporting requirement” and a “specific intent to commit the crime,” i.e., “a purpose to disobey the law.” See United States v. Bank of New England, N. A., 821 F. 2d 844, 854-859 (CA1 1987) (“willful violation” of § 5313’s reporting requirement for cash transactions over $10,000 requires “voluntary, intentional, and bad purpose to disobey the law”); United States v. Eisenstein, 731 F. 2d 1540, 1543 (CA11 1984) (“willful violation” of § 5313’s reporting requirement for cash transactions over $10,000 requires “ ‘proof of the defendant’s knowledge of the reporting requirement and his specific intent to commit the crime’”) (quoting United States v. Granda, 565 F. 2d 922, 926 (CA5 1978)).

The United States urges, however, that § 5324 violators, by their very conduct, exhibit a purpose to do wrong, which suffices to show “willfulness”:

“On occasion, criminal statutes — including some requiring proof of ‘willfulness’ — have been understood to require proof of an intentional violation of a known legal duty, i. e., specific knowledge by the defendant that his conduct is unlawful. But where that construction has been adopted, it has been invoked only to ensure that the defendant acted with a wrongful purpose. See Liparota v. United States, 471 U. S. 419, 426 (1985).

“The anti-structuring statute, 31 U.S.C. § 5324, satisfies the ‘bad purpose’ component of willfulness by explicitly defining the wrongful purpose necessary to violate the law: it requires proof that the defendant acted with the purpose to evade the reporting requirement of Section 5313(a).”

“Structuring is not the kind of activity that an ordinary person would engage in innocently.” the United States asserts. It is therefore “reasonable,” the Government concludes, “to hold a structurer responsible for evading the reporting requirements without the need to prove specific knowledge that such evasion is unlawful.”

Undoubtedly there are bad men who attempt to elude official reporting requirements in order to hide from Government inspectors such criminal activity as laundering drug money or tax evasion. But currency structuring is not inevitably nefarious. Consider, for example, the small business operator who knows that reports filed under 31 U.S.C. § 5313(a) are available to the Internal Revenue Service. To reduce the risk of an IRS audit, she brings $9,500 in cash to the bank twice each week, in lieu of transporting over $10,000 once each week. That person, if the United States is right, has committed a criminal offense, because she structured cash transactions “for the specific purpose of depriving the Government of the information that Section 5313(a) is designed to obtain.” Nor is a person who structures a currency transaction invariably motivated by a desire to keep the Government in the dark. But under the Government’s construction an individual would commit a felony against the United States by making cash deposits in small doses, fearful that the bank’s reports would increase the likelihood of burglary, or in an endeavor to keep a former spouse unaware of his wealth.

Courts have noted “many occasions” on which persons, without violating any law, may structure transactions “in order to avoid the impact of some regulation or tax.” This Court, over a century ago, supplied an illustration:

“The Stamp Act of 1862 imposed a duty of two cents upon a bank-check, when drawn for an amount not less than twenty dollars. A careful individual, having the amount of twenty dollars to pay, pays the same by handing to his creditor two checks of ten dollars each. He thus draws checks in payment of his debt to the amount of twenty dollars, and yet pays no stamp duty... While his operations deprive the government of the duties it might reasonably expect to receive, it is not perceived that the practice is open to the charge of fraud. He resorts to devices to avoid the payment of duties, but they are not illegal. He has the legal right to split up his evidences of payment, and thus to avoid the tax.” United States v. Isham, 17 Wall. 496, 506 (1873).

In current days, as an amicus noted, countless taxpayers each year give a gift of $10,000 on December 31 and an identical gift the next day, thereby legitimately avoiding the taxable gifts reporting required by 26 U.S.C. § 2503(b).

In light of these examples, we are unpersuaded by the argument that structuring is so obviously “evil” or inherently “bad” that the “willfulness” requirement is satisfied irrespective of the defendant’s knowledge of the illegality of structuring. Had Congress wished to dispense with the requirement, it could have furnished the appropriate instruction.

C

In § 5322, Congress subjected to criminal penalties only those “willfully violating” § 5324, signaling its intent to require for conviction proof that the defendant knew not only of the bank’s duty to report cash transactions in excess of $10,000, but also of his duty not to avoid triggering such a report. There are, we recognize, contrary indications in the statute’s legislative history. But we do not resort to legislative history to cloud a statutory text that is clear. Moreover, were we to find § 5322(a)’s “willfulness” requirement ambiguous as applied to § 5324, we would resolve any doubt in favor of the defendant. Hughey v. United States, 495 U. S. 411, 422 (1990) (lenity principles “demand resolution of ambiguities in criminal statutes in favor of the defendant”); Crandon v. United States, 494 U.S. 152, 160 (1990) (“Because construction of a criminal statute must be guided by the need for fair warning, it is rare that legislative history or statutory policies will support a construction of a statute broader than that clearly warranted by the text.”); United States v. Bass, 404 U.S. 336, 347-350 (1971) (rule of lenity premised on concepts that “ ‘fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed’ ” and that “legislatures and not courts should define criminal activity”) (quoting McBoyle v. United States, 283 U.S. 25, 27 (1931) (Holmes, J.)).

We do not dishonor the venerable principle that ignorance of the law generally is no defense to a criminal charge. See Cheek v. United States, 498 U. S. 192, 199 (1991). In particular contexts, however, Congress may decree otherwise. That, we hold, is what Congress has done with respect to 31 U.S.C. § 5322(a) and the provisions it controls. To convict Ratzlaf of the crime with which he was charged, violation of 31 U.S.C. §§ 5322(a) and 5324(3), the jury had to find he knew the structuring in which he engaged was unlawful. Because the jury was not properly instructed in this regard, we reverse the judgment of the Ninth Circuit and remand this case for further proceedings consistent with this opinion.

It is so ordered.

Justice BLACKMUN, with whom The Chief Justice, Justice O’CONNOR, and Justice THOMAS join, dissenting.

The petitioner in this case was informed by casino officials that a transaction involving more than $10,000 in cash must be reported, was informed by the various banks he visited that banks are required to report cash transactions in excess of $10,000, and then purchased $76,000 in cashier’s checks, each for less than $10,000 and each from a different bank. Petitioner Ratzlaf, obviously not a person of limited intelligence, was anything but uncomprehending as he traveled from bank to bank converting his bag of cash to cashier’s checks in $9,500 bundles. I am convinced that his actions constituted a “willful” violation of the antistructuring provision embodied in 31 U.S.C. § 5324. As a result of today’s decision, Waldemar Ratzlaf — to use an old phrase — will be “laughing all the way to the bank.”

The majority’s interpretation of the antistructuring provision is at odds with the statutory text, the intent of Congress, and the fundamental principle that knowledge of illegality is not required for a criminal act. Now Congress must try again to fill a hole it rightly felt it had filled before. I dissent.

The MPC states that, generally speaking, mistakes regarding the existence or meaning of the statute the defendant is charged with violating will not provide the defendant with a defense. The reason, of course, is that, again generally speaking, the government is not obligated to prove any mens rea with regard to the existence or meaning of the statute they are charging.

The MPC creates an exception, however, for those situations where the statute itself requires such proof. In all three of these cases, the Court determines that, through the use of the words willfully or knowingly, Congress intended to punish only those defendants who were aware that they were breaking the law. Do you agree with those conclusions in these cases.

Consider also, Bryan v. United States, 524 U.S. 184 (1998). Bryan was charged with "willfully" selling guns without a license in violation of 18 U.S.C. § 924(a)(1)(D). The trial judge instructed the jury as follows regarding the meaning of the phrase willfully:

A person acts willfully if he acts intentionally and purposely and with the intent to do something the law forbids, that is, with the bad purpose to disobey or to disregard the law. Now, the person need not be aware of the specific law or rule that his conduct may be violating. But he must act with the intent to do something that the law forbids.

Bryan objected, quoting language in Cheek and Ratzlaf that required the government to prove not just that he knew that his conduct was illegal, but that he was aware of the statute he was charged with violating. The Court rejected this argument.

Both the tax cases and Ratzlaf involved highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct. As a result, we held that these statutes "carv[e] out an exception to the traditional rule" that ignorance of the law is no excuse and require that the defendant have knowledge of the law. The danger of convicting individuals engaged in apparently innocent activity that motivated our decisions in the tax cases and Ratzlaf is not present here because the jury found that this petitioner knew that his conduct was unlawful.

Do you agree?

Hopkins v. State

Court of Appeals of Maryland

69 A.2d 456 (Md. App. 1949)

This appeal was taken by the Rev. William F. Hopkins, of Elkton, from the judgment of conviction entered upon the verdict of a jury in the Circuit Court for Cecil County for violation of the statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages.

The State charged that on September 1, 1947, defendant maintained a sign at the entrance to his home at 148 East Main Street in Elkton, and also a sign along a highway leading into the town, to aid in the solicitation and performance of marriages. Four photographs were admitted in evidence. One photograph, taken on an afternoon in September, 1947, shows the sign in Elkton containing the name "Rev. W.F. Hopkins." Another, taken at night shows the same sign illuminated at night by electricity. The third shows the other sign along the highway containing the words, "W.F. Hopkins, Notary Public, Information." The fourth shows this sign illuminated at night.

The State showed that during the month of August, 1947, thirty ministers performed 1,267 marriages in Cecil County, and of this number defendant performed 286, only three of which were ceremonies in which the parties were residents of Cecil County. Defendant contended that the judge erred in excluding testimony offered to show that the State's Attorney advised him in 1944 before he erected the signs, that they would not violate the law. It is generally held that the advice of counsel, even though followed in good faith, furnishes no excuse to a person for violating the law and cannot be relied upon as a defense in a criminal action. Moreover, advice given by a public official, even a State's Attorney, that a contemplated act is not criminal will not excuse an offender if, as a matter of law, the act performed did amount to a violation of the law. These rules are founded upon the maxim that ignorance of the law will not excuse its violation. If an accused could be exempted from punishment for crime by reason of the advice of counsel, such advice would become paramount to the law.

While ignorance of fact may sometimes be admitted as evidence of lack of criminal intent, ignorance of the law ordinarily does not give immunity from punishment for crime, for every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. In the case at bar defendant did not claim that the State's Attorney misled him regarding any facts of the case, but only that the State's Attorney advised him as to the law based upon the facts. Defendant was aware of the penal statute enacted by the Legislature. He knew what he wanted to do, and he did the thing he intended to do. He claims merely that he was given advice regarding his legal rights. If there was any mistake, it was a mistake of law and not of fact. If the right of a person to erect a sign of a certain type and size depends upon the construction and application of a penal statute, and the right is somewhat doubtful, he erects the sign at his peril. In other words, a person who commits an act which the law declares to be criminal cannot be excused from punishment upon the theory that he misconstrued or misapplied the law. For these reasons the exclusion of the testimony offered to show that defendant had sought and received advice from the State's Attorney was not prejudicial error.

MPC Section 2.04(3)

A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

(a)   The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

(b)   He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

Lambert v. California

United States Supreme Court

355 U.S. 225 (1957)

Justice DOUGLAS delivered the opinion of the Court.

Section 52.38(a) of the Los Angeles Municipal Code defines “convicted person” as follows:

“Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of an offense punishable as a felony in the State of California, or who has been or who is hereafter convicted of any offense in any place other than the State of California, which offense, if committed in the State of California, would have been punishable as a felony.”

Section 52.39 provides that it shall be unlawful for “any convicted person” to be or remain in Los Angeles for a period of more than five days without registering; it requires any person having a place of abode outside the city to register if he comes into the city on five occasions or more during a 30-day period; and it prescribes the information to be furnished the Chief of Police on registering.

Section 52.43(b) makes the failure to register a continuing offense, each day’s failure constituting a separate offense.

Appellant, arrested on suspicion of another offense, was charged with a violation of this registration law. The evidence showed that she had been at the time of her arrest a resident of Los Angeles for over seven years. Within that period she had been convicted in Los Angeles of the crime of forgery, an offense which California punishes as a felony. Though convicted of a crime punishable as a felony, she had not at the time of her arrest registered under the Municipal Code. At the trial, appellant asserted that § 52.39 of the Code denies her due process of law and other rights under the Federal Constitution, unnecessary to enumerate. The trial court denied this objection. The case was tried to a jury which found appellant guilty. The court fined her $250 and placed her on probation for three years. The registration provision, carrying criminal penalties, applies if a person has been convicted “of an offense punishable as a felony in the State of California” or, in case he has been convicted in another State, if the offense “would have been punishable as a felony” had it been committed in California. No element of willfulness is by terms included in the ordinance nor read into it by the California court as a condition necessary for a conviction.

We must assume that appellant had no actual knowledge of the requirement that she register under this ordinance, as she offered proof of this defense which was refused. The question is whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.

We do not go with Blackstone in saying that “a vicious will” is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition. But we deal here with conduct that is wholly passive — mere failure to register. It is unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed The rule that “ignorance of the law will not excuse is deep in our law, as is the principle that of all the powers of local government, the police power is “one of the least limitable.” On the other hand, due process places some limits on its exercise. Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.

Registration laws are common and their range is wide. Many such laws are akin to licensing statutes in that they pertain to the regulation of business activities. But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking. At most the ordinance is but a law enforcement technique designed for the convenience of law enforcement agencies through which a list of the names and addresses of felons then residing in a given community is compiled. The disclosure is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Nevertheless, this appellant on first becoming aware of her duty to register was given no opportunity to comply with the law and avoid its penalty, even though her default was entirely innocent. She could but suffer the consequences of the ordinance, namely, conviction with the imposition of heavy criminal penalties thereunder. We believe that actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. As Holmes wrote in The Common Law, “A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” Its severity lies in the absence of an opportunity either to avoid the consequences of the law or to defend any prosecution brought under it. Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine to read or in a language foreign to the community.

Reversed.

Mr. Justice Frankfurter, whom Mr. Justice Harlan and Mr. Justice Whittaker join, dissenting.

The present laws of the United States and of the forty-eight States are thick with provisions that command that some things not be done and others be done, although persons convicted under such provisions may have had no awareness of what the law required or that what they did was wrongdoing. The body of decisions sustaining such legislation, including innumerable registration laws, is almost as voluminous as the legislation itself. The matter is summarized in United States v. Balint, 258 U. S. 250, 252: “Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se.”

Surely there can hardly be a difference as a matter of fairness, of hardship, or of justice, if one may invoke it, between the case of a person wholly innocent of wrongdoing, in the sense that he was not remotely conscious of violating any law, who is imprisoned for five years for conduct relating to narcotics, and the case of another person who is placed on probation for three years on condition that she pay $250, for failure, as a local resident, convicted under local law of a felony, to register under a law passed as an exercise of the State’s “police power.” Considerations of hardship often lead courts, naturally enough, to attribute to a statute the requirement of a certain mental element — some consciousness of wrongdoing and knowledge of the law’s command — as a matter of statutory construction. Then, too, a cruelly disproportionate relation between what the law requires and the sanction for its disobedience may constitute a violation of the Eighth Amendment as a cruel and unusual punishment, and, in respect to the States, even offend the Due Process Clause of the Fourteenth Amendment.

But what the Court here does is to draw a constitutional line between a State’s requirement of doing and not doing. What is this but a return to Year Book distinctions between feasance and nonfeasance — a distinction that may have significance in the evolution of common-law notions of liability, but is inadmissible as a line between constitutionality and unconstitutionality. One can be confident that Mr. Justice Holmes would have been the last to draw such a line. What he wrote about “blameworthiness” is worth quoting in its context:

“It is not intended to deny that criminal liability, as well as civil, is founded on blameworthiness. Such a denial would shock the moral sense of any civilized community; or, to put it another way, a law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear.” (This passage must be read in the setting of the broader discussion of which it is an essential part. Holmes, The Common Law, at 49-50.)

If the generalization that underlies, and alone can justify, this decision were to be given its relevant scope, a whole volume of the United States Reports would be required to document in detail the legislation in this country that would fall or be impaired. I abstain from entering upon a consideration of such legislation, and adjudications upon it, because I feel confident that the present decision will turn out to be an isolated deviation from the strong current of precedents — a derelict on the waters of the law. Accordingly, I content myself with dissenting.

Note based on US v. Albertini, 830 F.2d 985 (9th Cir. 1987) (Albertini II)

Because he had repeatedly entered military bases to protest over peace and disarmament issues, Albertini had received a “bar letter” forbidding him from entering a number of Hawaiian military bases without prior authorization. Notwithstanding that bar, he entered a base during an Armed Forces Day open house and was arrested. He was convicted of trespass, but on appeal the Ninth Circuit Court of Appeals overturned his conviction on First Amendment grounds (Albertini I).

At this point, a number of things happened, the order of which is important.

•    Albertini twice returned to a Hawaiian military base during open house events, and was arrested each time.
•    The government sought certiorari from the US Supreme Court in the 9th Circuit’s decision overturning Albertini’s conviction
•    Albertini returned to the base a third time, and was arrested for a third time.
•    Albertini was prosecuted for all three trespasses and moved to dismiss based on the 9th Circuit opinion in Albertini I.
•    The Supreme Court granted certiorari.
•    The Supreme Court reversed the 9th Circuit opinion in Albertini I, finding that even when the public is invited onto a military base, the base is not a public forum for First Amendment purposes.
•    The government continued its prosecution, convicting Albertini of two of the three charged trespasses that occurred after Albertini I.
•    Albertini appeald to the 9th Circuit, claiming he reasonably relied on Albertini I in returning to the base three more times. 

How would you rule if you were on the 9th Circuit panel in Albertini II? Was it reasonable for Albertini to rely after the 9th Circuit first heard his appeal? After the government sought certiorari? When certiorari was granted?

Would it matter to you if Albertini were the CEO of a chemical company and the initial decision in his case allowed him to pour chemicals into a river rather than exercise his First Amendment rights?

Rehaif v. United States
588 U.S. 225 (2019)

A federal statute, 18 U. S. C. §922(g), provides that “[i]t shall be unlawful” for certain individuals to possess firearms. The provision lists nine categories of individuals subject to the prohibition, including felons and aliens who are “illegally or unlawfully in the United States.”  A separate provision, §924(a)(2), adds that anyone who “knowingly violates” the first provision shall be fined or imprisoned for up to 10 years. (Emphasis added.)

The question here concerns the scope of the word “knowingly.” Does it mean that the Government must prove that a defendant knew both that he engaged in the relevant conduct (that he possessed a firearm) and also that he fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the like)? We hold that the word “knowingly” applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.

I

Petitioner Hamid Rehaif entered the United States on a nonimmigrant student visa to attend university. After he received poor grades, the university dismissed him and told him that his “ ‘immigration status’ ” would be terminated unless he transferred to a different university or left the country. Rehaif did neither.

Rehaif subsequently visited a firing range, where he shot two firearms. The Government learned about his target practice and prosecuted him for possessing firearms as an alien unlawfully in the United States, in violation of §922(g) and §924(a)(2). At the close of Rehaif’s trial, the judge instructed the jury (over Rehaif’s objection) that the “United States is not required to prove” that Rehaif “knew that he was illegally or unlawfully in the United States.” App. to Pet. for Cert. 4a (internal quotation marks omitted). The jury returned a guilty verdict, and Rehaif was sentenced to 18 months’ imprisonment.

Rehaif appealed. 

II

Whether a criminal statute requires the Government to prove that the defendant acted knowingly is a question of congressional intent. See Staples v. United States, 511 U.S. 600, 605 (1994). In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994); see also Morissette v. United States, 342 U.S. 246, 256–258 (1952). We normally characterize this interpretive maxim as a presumption in favor of “scienter,” by which we mean a presumption that criminal statutes require the degree of knowledge sufficient to “mak[e] a person legally responsible for the consequences of his or her act or omission.” Black’s Law Dictionary 1547 (10th ed. 2014).

We apply the presumption in favor of scienter even when Congress does not specify any scienter in the statutory text. See Staples, 511 U. S., at 606. But the presumption applies with equal or greater force when Congress includes a general scienter provision in the statute itself. See ALI, Model Penal Code §2.02(4), p. 22 (1985) (when a statute “prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears”).

A

Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter. The statutory text supports the presumption. The text of §924(a)(2) says that “[w]hoever knowingly violates” certain subsections of §922, including §922(g), “shall be” subject to penalties of up to 10 years’ imprisonment. The text of §922(g) in turn provides that it “shall be unlawful for any person . . . , being an alien . . . illegally or unlawfully in the United States,” to “possess in or affecting commerce, any firearm or ammunition.”

The term “knowingly” in §924(a)(2) modifies the verb “violates” and its direct object, which in this case is §922(g). The proper interpretation of the statute thus turns on what it means for a defendant to know that he has “violate[d]” §922(g). With some here-irrelevant omissions, §922(g) makes possession of a firearm or ammunition unlawful when the following elements are satisfied: (1) a status element (in this case, “being an alien . . . illegally or unlawfully in the United States”); (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”).
No one here claims that the word “knowingly” modifies the statute’s jurisdictional element. Jurisdictional elements do not describe the “evil Congress seeks to prevent,” but instead simply ensure that the Federal Government has the constitutional authority to regulate the defendant’s conduct (normally, as here, through its Commerce Clause power).  Because jurisdictional elements normally have nothing to do with the wrongfulness of the defendant’s conduct, such elements are not subject to the presumption in favor of scienter. 

Jurisdictional element aside, however, the text of §922(g) simply lists the elements that make a defendant’s behavior criminal. As “a matter of ordinary English grammar,” we normally read the statutory term “ ‘knowingly’ as applying to all the subsequently listed elements of the crime.” Flores-Figueroa v. United States, 556 U.S. 646, 650 (2009); see also id., at 652 (we “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element”). This is notably not a case where the modifier “knowingly” introduces a long statutory phrase, such that questions may reasonably arise about how far into the statute the modifier extends. And everyone agrees that the word “knowingly” applies to §922(g)’s possession element, which is situated after the status element. We see no basis to interpret “knowingly” as applying to the second §922(g) element but not the first. To the contrary, we think that by specifying that a defendant may be convicted only if he “knowingly violates” §922(g), Congress intended to require the Government to establish that the defendant knew he violated the material elements of §922(g).

B

Beyond the text, our reading of §922(g) and §924(a)(2) is consistent with a basic principle that underlies the criminal law, namely, the importance of showing what Blackstone called “a vicious will.” 4 W. Blackstone, Commentaries on the Laws of England 21 (1769). As this Court has explained, the understanding that an injury is criminal only if inflicted knowingly “is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.” Morissette, 342 U. S., at 250. Scienter requirements advance this basic principle of criminal law by helping to “separate those who understand the wrongful nature of their act from those who do not.” X-Citement Video, 513 U. S., at 72–73, n. 3.

The cases in which we have emphasized scienter’s importance in separating wrongful from innocent acts are legion. We have interpreted statutes to include a scienter requirement even where the statutory text is silent on the question. And we have interpreted statutes to include a scienter requirement even where “the most grammatical reading of the statute” does not support one. X-Citement Video, 513 U. S., at 70.

Applying the word “knowingly” to the defendant’s status in §922(g) helps advance the purpose of scienter, for it helps to separate wrongful from innocent acts. Assuming compliance with ordinary licensing requirements, the possession of a gun can be entirely innocent. See Staples, 511 U. S., at 611. It is therefore the defendant’s status, and not his conduct alone, that makes the difference. Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally do not attach. Cf. O. Holmes, The Common Law 3 (1881) (“even a dog distinguishes between being stumbled over and being kicked”).

We have sometimes declined to read a scienter requirement into criminal statutes. See United States v. Balint, 258 U.S. 250, 254 (1922). But we have typically declined to apply the presumption in favor of scienter in cases involving statutory provisions that form part of a “regulatory” or “public welfare” program and carry only minor penalties. See Staples, 511 U. S., at 606; Morissette, 342 U. S., at 255–259. The firearms provisions before us are not part of a regulatory or public welfare program, and they carry a potential penalty of 10 years in prison that we have previously described as “harsh.” X-Citement Video, 513 U. S., at 72. Hence, this exception to the presumption in favor of scienter does not apply.

III

The Government’s arguments to the contrary do not convince us that Congress sought to depart from the normal presumption in favor of scienter.

The Government argues that Congress does not normally require defendants to know their own status. But the Government supports this claim primarily by referring to statutes that differ significantly from the provisions at issue here. One of these statutes prohibits “an officer, employee, contractor, or consultant of the United States” from misappropriating classified information. 18 U. S. C. §1924(a). Another statute applies to anyone “at least eighteen years of age” who solicits a minor to help avoid detection for certain federal crimes. 21 U. S. C. §861(a)(2). A third applies to a “parent [or] legal guardian” who allows his child to be used for child pornography. 18 U. S. C. §2251(b).

We need not decide whether we agree or disagree with the Government’s interpretation of these statutes. In the provisions at issue here, the defendant’s status is the “crucial element” separating innocent from wrongful conduct. X-Citement Video, 513 U. S., at 73. But in the statutes cited by the Government, the conduct prohibited—misappropriating classified information, seeking to evade detection for certain federal crimes, and facilitating child pornography—would be wrongful irrespective of the defendant’s status. This difference assures us that the presumption in favor of scienter applies here even assuming the Government is right that these other statutes do not require knowledge of status.

Nor do we believe that Congress would have expected defendants under §922(g) and §924(a)(2) to know their own statuses. If the provisions before us were construed to require no knowledge of status, they might well apply to an alien who was brought into the United States unlawfully as a small child and was therefore unaware of his unlawful status. Or these provisions might apply to a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is “punishable by imprisonment for a term exceeding one year.” §922(g)(1) (emphasis added); see also Games-Perez, 667 F. 3d, at 1138 (defendant held strictly liable regarding his status as a felon even though the trial judge had told him repeatedly—but incorrectly—that he would “leave this courtroom not convicted of a felony”). As we have said, we normally presume that Congress did not intend to impose criminal liability on persons who, due to lack of knowledge, did not have a wrongful mental state. And we doubt that the obligation to prove a defendant’s knowledge of his status will be as burdensome as the Government suggests. See Staples, 511 U. S., at 615, n. 11 (“knowledge can be inferred from circumstantial evidence”).

The Government also argues that whether an alien is “illegally or unlawfully in the United States” is a question of law, not fact, and thus appeals to the well-known maxim that “ignorance of the law” (or a “mistake of law”) is no excuse. Cheek v. United States, 498 U.S. 192, 199 (1991).

This maxim, however, normally applies where a defendant has the requisite mental state in respect to the elements of the crime but claims to be “unaware of the existence of a statute proscribing his conduct.” 1 W. LaFave & A. Scott, Substantive Criminal Law §5.1(a), p. 575 (1986). In contrast, the maxim does not normally apply where a defendant “has a mistaken impression concerning the legal effect of some collateral matter and that mistake results in his misunderstanding the full significance of his conduct,” thereby negating an element of the offense. Ibid.; see also Model Penal Code §2.04, at 27 (a mistake of law is a defense if the mistake negates the “knowledge . . . required to establish a material element of the offense”). Much of the confusion surrounding the ignorance-of-the-law maxim stems from “the failure to distinguish [these] two quite different situations.” LaFave, Substantive Criminal Law §5.1(d), at 585.

We applied this distinction in Liparota, where we considered a statute that imposed criminal liability on “whoever knowingly uses, transfers, acquires, alters, or possesses” food stamps “in any manner not authorized by the statute or the regulations.” 471 U. S., at 420 (quotation altered). We held that the statute required scienter not only in respect to the defendant’s use of food stamps, but also in respect to whether the food stamps were used in a “manner not authorized by the statute or regulations.”  We therefore required the Government to prove that the defendant knew that his use of food stamps was unlawful—even though that was a question of law.

This case is similar. The defendant’s status as an alien “illegally or unlawfully in the United States” refers to a legal matter, but this legal matter is what the commentators refer to as a “collateral” question of law. A defendant who does not know that he is an alien “illegally or unlawfully in the United States” does not have the guilty state of mind that the statute’s language and purposes require.

*  *  *

The Government asks us to hold that any error in the jury instructions in this case was harmless. But the lower courts did not address that question. We therefore leave the question for those courts to decide on remand. 

We conclude that in a prosecution under 18 U. S. C. §922(g) and §924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm.

United States v. Wilson, 159 F.3d 280 (7th Cir. 1998)

On September 5, 1997, appellant Carlton Wilson was convicted by a jury of possessing a gun while subject to a protective order, prohibited by a relatively new and obscure portion of 18 U.S.C. § 922. On appeal, Wilson raises a host of issues regarding his conviction. As we discuss below, we find that 18 U.S.C. § 922(g) (8) is constitutional and that the district court did not commit any errors with regard to Wilson's conviction or sentence, and we therefore affirm.

BACKGROUND

The following facts are drawn from the record in the underlying jury trial and are viewed in a light most favorable to the government. On September 10, 1996, Illinois State Trooper Mari Kay Rolape ("Rolape") stopped to assist appellant Carlton Wilson ("Wilson"), whose pickup truck was pulled over on the side of eastbound Illinois Route 146. In the course of running a routine check on Wilson's driver's license, Trooper Rolape learned of an outstanding arrest warrant against Wilson for failure to appear in court. As Trooper Rolape talked to Wilson about the warrant, fellow State Trooper Bill Jacques ("Jacques") arrived on the scene and eventually placed Wilson under arrest. During a subsequent inventory search of Wilson's truck, Trooper Jacques found a .12 gauge shotgun contained in a case and a MAC 90 Sportster rifle on the floorboard behind the driver's seat. In addition, Trooper Jacques found a loaded nine-millimeter Locrin handgun in a fanny pack that Wilson had been wearing immediately prior to his arrest. On March 5, 1997, Wilson was indicted in the United States District Court for the Southern District of Illinois for possessing a firearm in and affecting interstate commerce while subject to an order of protection, pursuant to 18 U.S.C. § 922(g) (8).

At the time of his arrest, Wilson was subject to an order of protection stemming from divorce proceedings initiated by Wilson's (now ex-) wife, Angela Wilson. Carlton and Angela had been married on June 1, 1991, and Angela filed for divorce in Crawford County, Illinois, in 1994. On August 15, 1995, Angela and her attorney, William Thomas ("Thomas"), obtained an emergency order of protection against Wilson, with which he was subsequently served. The order stated that a further hearing would be held on September 1, 1995, and Wilson (as well as Angela and Thomas) appeared in court that day. At that time, while acting pro se, Wilson first filed a motion with Circuit Court Judge Hill to vacate a default dissolution of marriage that had been entered in favor of Angela and a motion to have Judge Hill recuse himself from the case. The Judge granted both of Wilson's motions, and Judge David Correll took over the case. Wilson, Thomas, and Judge Correll then retired to Judge Correll's chambers for the scheduled hearing on the entry of a plenary order of protection ("plenary order") against Wilson while Angela and Wilson's mother, who was also present, waited outside. 

The testimony at trial revealed that the meeting in Judge Correll's chambers lasted no more than ten minutes. During the meeting, Judge Correll explained the proposed order of protection to Wilson, who indicated that he did not have a problem with any of its terms. The parties also discussed child support payments and a visitation schedule for Wilson. On September 15, as was custom, Thomas presented a written version of the order of protection to Judge Correll for his signature, and the order was signed and entered in the court's docket. This order was never rescinded, and was in effect on the date that Wilson was arrested by Trooper Jacques.

Wilson went to trial before a jury on September 2, 1997, and was convicted on September 5, 1997. On January 29, 1998, Wilson was sentenced to 41 months in prison, given a $7,500 fine and a $100 special assessment, and placed on supervised release for three years following his imprisonment. Wilson filed a timely notice of appeal, and presently challenges the constitutionality of § 922(g) (8), several rulings of the district court prior to and during trial, and his sentence. We discuss each of his contentions in turn.

ANALYSIS

As stated above, Wilson was convicted for possessing a gun in interstate commerce while subject to a protection order, in violation of 18 U.S.C. § 922(g) (8). This statute states:

It shall be unlawful for any person--
...
(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) 

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury ...
...

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Wilson first challenges his conviction by arguing that § 922(g) (8) is unconstitutional for a variety of reasons. The district court rejected these arguments, finding that the statute passed constitutional muster. We review the district court's determination of the constitutionality of a federal statute de novo. 

[The Court analyzed and reject Wilson’s arguments that the statute violated the Commerce Clause and the anticommandeering principle of the Tenth Amendment.]

Lastly, Wilson argues that the statute is unconstitutional because it violates his due process rights under the Fifth Amendment. Citing Bouie v. City of Columbia, 378 U.S. 347, 350-51 (1964), for the proposition that a criminal statute, to be valid, must give fair warning of the conduct that it makes a crime, Wilson argues that he did not receive any warning that his possession of a weapon would lead to a federal prosecution. Wilson appears to have mistakenly combined two different lines of argument into one: whether a person knows that a law has been passed regulating certain conduct is a question separate and distinct from the question of whether that law, as written, adequately describes the conduct it seeks to criminalize. In any event, neither of Wilson's points is meritorious.

To the extent that Wilson is arguing that language used in § 922(g) (8) does not give adequate notice of the conduct it makes illegal, he is incorrect.

The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.

Bouie, 378 U.S. at 351. A statute must be struck down when it is not "sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties." Id. An examination of the language of § 922(g) (8) shows that it does not suffer from any such deficiencies. It clearly specifies that individuals subject to certain types of protective orders may not ship or transport firearms or ammunition in or affecting commerce. The class of affected individuals is explicitly defined, as is the conduct sought to be regulated, and the statute is not unconstitutionally vague.

To the extent that Wilson is arguing that he was unaware of the law and that his conviction therefore cannot stand, he is also incorrect. The traditional rule in American jurisprudence is that ignorance of the law is no defense to a criminal prosecution. Cheek v. United States, 498 U.S. 192, 199 (1991) (citations omitted); see also Bryan v. United States, --- U.S. (1998) (traditional rule is that "ignorance of the law is no excuse"); Lambert v. People of the State of California, 355 U.S. 225, 228 (1957) (rule that "ignorance of the law will not excuse" is deeply rooted in American law). Wilson has not shown that the present statute falls into an exception to this general rule, see Bryan, --- U.S. at ---- (noting exception for "highly technical statutes that present [ ] the danger of ensnaring individuals engaged in apparently innocent conduct"), and Lambert, 355 U.S. at 228 (notice required when penalty may be exacted for failing to act), and the fact that he was unaware of the existence of § 922(g) (8) does not render his conviction erroneous.

Lastly, Wilson alleges that because he had no notice of § 922(g) (8), he was unable to form the requisite mens rea to violate the statute. He then cites Staples v. United States, 511 U.S. 600 (1994), arguing that the elimination of a mens rea requirement in a criminal statute is a fundamental departure from longstanding principles of criminal law. Being unable to form the mens rea required by a statute and being charged under a statute that has no mens rea requirement, however, are not one and the same. To the extent that Wilson is suggesting that § 922(g) (8) requires no particular mens rea for its violation, he is incorrect. Pursuant to 18 U.S.C. § 924(a) (2), an individual may only be punished if he "knowingly" violates any provision of § 922(g). This is in contrast to the statute involved in Staples, which contained no specific mens rea requirement but simply provided that it was "unlawful" to receive or possess certain types of firearms unless they were registered with the government. Staples, 511 U.S. at 605, 114 S. Ct. 1793. Since § 924(g) (8) does require a specific state of mind, Wilson's reliance on Staples is misplaced.

Furthermore, the fact that he did not know about the statute does not mean that he could not have committed a "knowing" violation of it. The Supreme Court has stated that "the term 'knowingly' does not necessarily have any reference to a culpable state of mind or to knowledge of the law." Bryan, 118 S. Ct. at 1945. Rather, "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Id. Unless the text of the statute at issue dictates a different result, establishing a "knowing" violation of the statute only requires proof of knowledge by the defendant of the facts that constitute the offense. Id. at 1945. This understanding has been applied to those portions of § 922 that punish "knowing" conduct, including § 922(g). Wilson has not argued, nor do we find that he could, that the text of § 922(g) (8) requires a different meaning to be ascribed to "knowing," and he has not argued that he did not have knowledge of the actions constituting the offense (i.e., that he was possessing a gun in his car and was subject to an order of protection). Wilson's lack of knowledge of the existence of the statute is therefore immaterial and his due process rights were not violated in this case.

In summary, we find that § 922(g) (8) is a valid exercise of Congress' power under the Commerce Clause and does not violate either the Tenth Amendment or the due process clause of the Fifth Amendment. 

POSNER, Chief Judge, dissenting.

It is wrong to convict a person of a crime if he had no reason to believe that the act for which he was convicted was a crime, or even that it was wrongful. This is one of the bedrock principles of American law. It lies at the heart of any civilized system of law. Yet like most legal generalizations, it can be maintained only with careful qualification. We generally do not require prosecutors to prove that the defendant knew that he was violating the law, even in cases in which the law is sufficiently remote from the moral code of the society that such knowledge cannot be presumed or its absence taken as evidence of culpable moral obtuseness. We say instead that "ignorance of the law is no defense," and do not pause to consider the consistency of this maxim with what we elsewhere affirm to be a fundamental constituent of the rule of law and the Constitution of the United States. In the unusual circumstances of this case, the maxim of expedience should yield to the bedrock principle; and there is enough room in the statutory language to achieve this end without having to trundle out the heavy artillery of constitutional law.

Congress created, and the Department of Justice sprang, a trap on Carlton Wilson as a result of which he will serve more than three years in federal prison for an act (actually an omission to act) that he could not have suspected was a crime or even a civil wrong. We can release him from the trap by interpreting the statute under which he was convicted to require the government to prove that the violator knew that he was committing a crime. This is the standard device by which the courts avoid having to explore the outer boundaries of the constitutional requirement of fair notice of potential criminal liability. See, e.g., Ratzlaf v. United States, 510 U.S. 135 (1994); Staples v. United States, 511 U.S. 600 (1994).

Section 922(g) (8) of the federal criminal code (Title 18), when read in conjunction with section 924(a) (2), makes it a crime punishable by up to 10 years in prison for any person to possess a gun if he is subject to a domestic-relations restraining order against stalking or otherwise threatening a spouse or child. The first of these sections, 18 U.S.C. § 922(g) (8), contains no reference to the defendant's knowledge. But this section merely makes the conduct (the possession of a gun by a person subject to a stalking order) unlawful; it imposes no penalty for a violation. The penalty provision is section 924(a) (2), and it requires that the defendant have "knowingly" violated section 922(g).

The stalking provision was enacted in 1994 and the number of prosecutions for violating it has been minuscule (perhaps fewer than 10, though I have not been able to discover the exact number, which is not a reported statistic) in relation to the probable number of violations. I estimate that every year the law has been in effect almost one hundred thousand restraining orders against domestic violence have been issued. Since 40 percent of U.S. households own guns, there can be very little doubt that a large percentage of those orders were issued against gun owners.

How many of these gun owners, when they got notice of the restraining order, dispossessed themselves of their guns? I doubt that any did. The law is malum prohibitum, not malum in se; that is, it is not the kind of law that a lay person would intuit existed because the conduct it forbade was contrary to the moral code of his society. Compare United States v. Robinson, 137 F.3d 652, 654 (1st Cir. 1998) ("child pornography offends the moral sensibility of the community at large"), with United States v. Grigsby, 111 F.3d 806, 816-21 (11th Cir. 1997) (importation of ivory in violation of the African Elephant Conservation Act not criminal without knowledge of the Act). Yet the Department of Justice took no steps to publicize the existence of the law until long after Wilson violated it, even to the extent of advising the state judiciaries of it so that judges could warn defendants in domestic-relations disputes. At argument the prosecutor told us that the Office of the U.S. Attorney for the Southern District of Illinois has made no effort to advise the local judiciary of the law. Later he sent us two bulletins from Department of Justice headquarters in Washington to the U.S. Attorneys' Offices throughout the country directing the U.S. Attorneys to "educate your state and local counterparts on these provisions. Their assistance, particularly in working with local judges to fashion domestic violence protective orders, is essential to the effective implementation of the [provisions]" (emphasis added). But these bulletins--a tacit admission that four years after the enactment of the law, the word hadn't gotten out even to judges--were not circulated until after Wilson's trial.

The federal criminal code contains thousands of separate prohibitions, many ridiculously obscure, such as the one against using the coat of arms of Switzerland in advertising, 18 U.S.C. § 708, or using "Johnny Horizon" as a trade name without the authorization of the Department of the Interior. 18 U.S.C. § 714. The prohibition in section 922(g) (8) is one of the most obscure. A person owns a hunting rifle. He knows or should know that if he is convicted of a felony he will have to get rid of the gun; if he doesn't know, the judge or the probation service will tell him. But should he be made subject to a restraining order telling him to keep away from his ex-wife, whom he has not ever threatened with his hunting rifle (the judge who issued the restraining order could but did not issue an order forbidding Wilson to possess a firearm as long as the order was in force, 725 ILCA 5/112A-14(b) (14.5)), it will not occur to him that he must give up the gun unless the judge issuing the order tells him. The judge didn't tell Wilson; so far as appears, the judge was unaware of the law. Wilson's lawyer didn't tell him either--Wilson didn't have a lawyer. No one told him. And there is no reason that he should have guessed, for while he had beaten his wife and threatened to kill her, there is no indication that guns played any part in the beating or the threats. The fact that the restraining order contained no reference to guns may have lulled him into thinking that, as long as he complied with the order and stayed away from his wife, he could carry on as before.

When a defendant is morally culpable for failing to know or guess that he is violating some law (as would be the case of someone who committed a burglary without thinking-so warped was his moral sense-that burglary might be a crime), we rely on conscience to provide all the notice that is required. Sometimes the existence of the law is common knowledge, as in the case of laws forbidding people to own hand grenades (see United States v. Freed, 401 U.S. 601, 609 (1971)), forbidding convicted felons to own any firearms, and requiring a license to carry a handgun. And sometimes, though the law is obscure to the population at large and nonintuitive, the defendant had a reasonable opportunity to learn about it, as in the case of persons engaged in the shipment of pharmaceuticals who run afoul of the criminal prohibitions in the federal food and drug laws. See United States v. Dotterweich, 320 U.S. 277 (1943). We want people to familiarize themselves with the laws bearing on their activities. But a reasonable opportunity doesn't mean being able to go to the local law library and read Title 18. It would be preposterous to suppose that someone from Wilson's milieu is able to take advantage of such an opportunity. If none of the conditions that make it reasonable to dispense with proof of knowledge of the law is present, then to intone "ignorance of the law is no defense" is to condone a violation of fundamental principles for the sake of a modest economy in the administration of criminal justice.

Actually a false economy. The purpose of criminal laws is to bring about compliance with desired norms of behavior. In the present case it is to reduce domestic violence by getting guns out of the hands of people who are behaving menacingly toward (in the usual case) an estranged or former spouse. This purpose is ill served by keeping the law a secret, which has been the practical upshot of the Department of Justice's failure--until too late, at least for Wilson--either to enforce the law vigorously or to notify the relevant state officials of the law's existence. In such circumstances the law is not a deterrent. It is a trap.

All the Department of Justice had to do in order to preserve the rule of law was to notify all state courts that have a domestic-relations jurisdiction of the existence and terms of 18 U.S.C. § 922(g) (8) and to suggest that every domestic-relations restraining order contain a printed warning that the defendant is violating federal criminal law unless he immediately divests himself of any firearms and ammunition that he owns. Domestic-relations judges would be happy to include such a warning because it would give added teeth to their orders. At slight cost-negative, really, when one considers how compliance with the law would soar-the administration of the law would be brought into conformity with the rule of law. The bulletins that the home office of the Department of Justice has sent the U.S. Attorneys is a belated but welcome recognition of my point but came too late to help Wilson avoid becoming a federal felon.

We thus have an example of those "highly technical statutes that present ... the danger of ensnaring individuals engaged in apparently innocent conduct" of which the Supreme Court spoke in Bryan v. United States, 118 S. Ct. 1939, 1946-47(1998). This case differs from Bryan because the statute here is easy to understand; but it is hard to discover, and that comes to the same thing, as we know from Lambert v. California, 355 U.S. 225 (1957). The law challenged in that case required a felon to register with the police. Lambert, a felon, failed to do so. She "had no actual knowledge of the requirement"; there was no showing of "the probability of such knowledge"; "violation of [the law's] provisions [was] unaccompanied by any activity whatever"; and "circumstances which might move one to inquire as to the necessity of registration [were] completely lacking." The Court voided Lambert's conviction. We should do the same for Wilson's conviction.

Bryan's reference to "apparently innocent conduct" describes the ownership of rifles and handguns, for personal use and not for sale, by nonfelons in this nation's gun-friendly culture. "[T]here is a long tradition of widespread lawful gun ownership by private individuals in this country." Staples v. United States, supra, 511 U.S. at 610. Such ownership is as innocent as making huge cash deposits, or having a large professional income but not filing income tax returns--activities that the Supreme Court has held do not subject a person to criminal liability if he is ignorant of the law. Ratzlaf v. United States, supra; Cheek v. United States, 498 U.S. 192, (1991); see also Liparota v. United States, 471 U.S. 419 (1985).

It is true that strict liability, of which convicting a person for conduct that he could not, realistically, have known was criminal is an example, is not unknown to the criminal law. There are strict-liability crimes, see, e.g., United States v. Balint, 258 U.S. 250, 252-53,  (1922); United States v. Dotterweich, supra; Mueller v. Sullivan, 141 F.3d 1232, 1235-36 (7th Cir. 1998), which is to say crimes that can be committed without any culpable state of mind whatever. And many crimes have an element of strict liability, the classic example being statutory rape in jurisdictions in which the girl's apparent maturity is not a defense. But the existence and content of the criminal prohibition in these cases are not hidden; the defendant is warned to steer well clear of the core of the offense (as in the statutory-rape case) or to take the utmost care (the food and drug cases), or to familiarize himself with the laws relating to his business (emphasized in Mueller). None of these rationales applies to Wilson. His is the classic case of the unwarned defendant. He is entitled to a new trial at which the government would have to prove that he knew that continued possession of guns after the restraining order was entered was a crime. This conclusion is a linguistically permissible interpretation of the statute because only the knowing violation of section 922(g) (8) carries a criminal penalty; the interpretation avoids a constitutional issue; and it is supported by Lambert, Ratzlaf, Cheek, and other decisions.

I agree with my colleagues' discussion of the other issues that the appeal presents.